Druml Co. v. Capitol Machinery Sales & Service Co.

• Decision Date: 30 November 1965
• Citation: 138 N.W.2d 144,29 Wis.2d 95
• Court: Wisconsin Supreme Court
• Parties: The DRUML CO., Inc., a Wis. corporation, Plaintiff-Respondent, v. CAPITOL MACHINERY SALES & SERVICE CO., a Wis. corporation, Defendant-Appellant, The E & C Co., a Wis. corporation, Intervening Defendant-Appellant.

Page 144

138 N.W.2d 144

29 Wis.2d 95

The DRUML CO., Inc., a Wis. corporation, Plaintiff-Respondent, v. CAPITOL MACHINERY SALES & SERVICE CO., a Wis. corporation Defendant-Appellant The E & C Co., a Wis. corporation, Intervening Defendant-Appellant.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Rehearing Denied Feb. 1, 1966.

Glassner, Clancy & Glassner, Milwaukee, for appellant.

George E. Frederick, Milwaukee, for respondent, William P. McGovern, Milwaukee, of counsel.

HALLOWS, Justice.

The main issue is whether the trial court's finding that the screed was sold as a part of Lot 351 is contrary to the great weight and clear preponderance of the evidence. If the finding is not so contrary, this court will not upset it on appeal. Kirchen v. Gottschalk (1965), 26 Wis.2d 123, 131 N.W.2d 885; Estate of Rich (1965), 26 Wis.2d 86, 131 N.W.2d 909; Estate of Starer (1963), 20 Wis.2d 268, 121 N.W.2d 872. Applying the great-weight-and-clear-preponderance test, we stated in State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, on p. 255, 112 N.W.2d 701, on p. 704:

'Considering the evidence as a whole requires the evidence on each side to be weighed and probabilities arrayed against probabilities at least sufficiently to determine whether those on the appellant's side so manifestly outweigh those supporting the finding as to meet the great weight and clear preponderance necessary to disapprove the finding complained of. There may be credible evidence to sustain the court's finding and which, if a jury verdict were involved, would end the inquiry on the appeal, but which in view of the whole evidence will not reasonably support the finding.'

Sales of personal property at auction prior to July 1, 1965, were regulated by sec. 121.21, Stats. (Uniform Sales Act), and by the promulgated terms and conditions of the auction. Keske v. Boeder (1919), 168 Wis. 369, 170 N.W. 247; Clarke v. Maisch (1920), 171 Wis. 225, 177 N.W. 11.

The defendants contend that according to the terms of the sale the screed was a part of Lot 354 and could not be sold as part of Lot 351. Neither lot listed in the pamphlet refers to a screed, but it is argued that the finisher had a center screed attached but no front screed while Lot 354 (the finishing spreader) did not have any screed attached to it and that the screed in question was the same color as the spreader, being a darker shade of orange than the finisher. Prior to the auction the screed was used interchangeably with the spreader and the finisher. There is some testimony the tag on the screed had Lot 351 on it but the chalk mark on the screed was #354. There is testimony by Mr. Druml and the auctioneer that when Lot 351 was being auctioned Mr. Druml asked the auctioneer whether the screed was part of the lot, thereupon the auctioneer asked Mr. Schwerm the president of Capitol Machinery Sales & Service Co. and was told the screed was part of Lot 351. This testimony is disputed by witnesses for the defendants. The trial court believed the testimony offered by the plaintiff and the defendants attack the auctioneer's credibility on the ground he might be liable for the screed to the plaintiff.

It is also claimed the plaintiff could not have purchased the screed at the auction because some two days thereafter upon discovering the screed had been removed from the auction site Mr. Druml phoned Schwerm and offered to buy the screed for some $200. During the conversation Schwerm claimed the screed went with Lot 354 purchased by Payne & Dolan for $300 and stated E & C Co. had purchased it that morning for $1,004.25. Schwerm offered to sell the screed for $1,000 to Druml, which offer was refused. The $200 offer was explained by Mr. Druml on the theory the plaintiff had immediate use for the finisher with two screeds and it was worth that much to him to resolve any difficulty with Schwerm.

Whether or not the screed originally belonged to Lot 354, the auctioneer under the terms of the sale had a right to vary the lot and put the screed into Lot 351. Considering all the evidence and recognizing the trial court's function to determine which witnesses...