Fletcher v. Ingram

• Decision Date: 31 January 1879
• Parties: FLETCHER v. INGRAM ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 191

50 N.W. 424

FLETCHER

v.INGRAM ET AL.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Eau Claire county.

Action by A. K. Fletcher against Ingram and others for the conversion of lumber. There was a judgment on a verdict for plaintiff, and the court denied a motion for a new trial. Defendants appeal. Judgment affirmed.Levi M. Vilas, for appellants.

Henry H. Hayden and Wm. P. Bartlett, for respondent.

ORTON, J.

This action is for the conversion of certain cribs of lumber by the defendants as copartners, and the answer admits the copartnership, and denies all other allegations of the complaint. It was in evidence that in the summer of 1876 the plaintiff contracted with the firm of Saul & Lally, operating a saw-mill on the Chippewa river, to deliver them logs at their mill, to be sawed into lumber, and to be paid therefor at the rate of 60 per cent. of the product thereof, in merchantable lumber to be delivered at Reed's Landing on the Mississippi, opposite the mouth of said river. The plaintiff had delivered to Saul & Lally a large quantity of logs under this contract, and a part of them had been sawed into lumber before the 18th day of September of that year; and then Saul & Lally, having met with reverses, failed in business, and mortgaged all of their logs to the defendants, who were thereafter to stock said mill, and from that time the plaintiff was to look to them for the balance of the lumber coming to him in payment for said logs. At this time Saul & Lally had sawed, and put into the river just below their mill, seven cribs of lumber for the plaintiff under said contract, and marked each crib with the name of the plaintiff, “A. K. Fletcher,” or with his initials, “A. K. F.,” and had the same in readiness to be run down the river according to the terms of said contract. One McKinnon had been in the employment of Saul & Lally during that season, in running their lumber down the river to Reed's Landing, where it had been sold; and he had in his employment for that purpose a crew of men, among whom was one Patrick Holland as second pilot; and this pilot was to run these cribs down the river to Eau Claire, three miles below, there to be taken charge of by McKinnon, who was at that city at the time, and was making preparations so to do by making or repairing oars, and had receipted for the cribs, and had received a blank receipt, to be signed by the person who was to receive said lumber at Reed's Landing, but had not actually taken possession of the cribs with his men; and they were still in the place, tied up to the bank and undisturbed, where they were placed by Saul & Lally. This was the condition of things when the plaintiff came to the mill, about the 20th day of that month. He had written to Saul & Lally at different times to know whether his lumber was ready, and they had written to him that it was ready. When he came to the mill he asked Lally, one of the firm, if his lumber had been manufactured, and Lally told him that it had been, and went with him down the bank of the river and showed him the cribs, which were in sight, and told him that lumber was manufactured for him and marked to him, and that the balance, for any logs that were sawed there after the 18th day of September, the defendants would pay for him, and that he would have to look to them for it, and not to Saul & Lally; and the pilot showed him the blank receipt. There was at the time something more due him than these cribs would pay. There was no other lumber mixed with this lumber in the cribs, and the amount of the lumber in the cribs was figured up between the plaintiff and Lally, and a bill of it was made out, in which it was charged to the plaintiff; and Lally told plaintiff that the pilot would run it down to Reed's Landing for him, the plaintiff, and deliver it to the watchman of the defendants; and plaintiff said “that was all right.” On the same day the plaintiff went to the office of the defendants, and saw their book-keeper, a Mr. Chamberlain, and told him to do with this lumber just as they did with their own at Reed's Landing,--tie it up, and wait until the market was better, and then sell it, just as they thought best. Very soon thereafter Holland, the second pilot, ran the cribs down to Eau Claire, and delivered them, together with the blank receipt, to McKinnon, who tied them up to the bank near Eau Claire, and then attachedthe lumber as the property of Saul & Lally, upon their alleged indebtedness to him; and the cribs remained there tied up until after judgment in the attachment suit, and were then by the sheriff sold to McKinnon, who afterwards sold the same to George A. Potter, of the firm of Ingram, Kennedy & Co., the defendants, and received payment therefor by a draft handed to him by the said Chamberlain, the book-keeper of said firm. The cribs were then run down the river in connection with other lumber of the defendants, and the steamer Clyde, partly owned by them; and they went in to make up a raft not full, belonging to the defendants, and were sold at some point on the Mississippi river by them, at such rate that the cost of running it was saved, and part of the cost of running the other lumber, which made the profits of the purchase, and lessened by so much the expenses of said steamer. This is substantially all the evidence material to be considered, and these are the facts which the jury may have found from all the evidence given on the trial; and, upon the case thus presented, the following questions were raised and most ably argued by the learned counsel upon this appeal: (1) Do these facts show such a delivery of the lumber at the mill by Saul & Lally to the plaintiff as completely divested them of all property in it, and made the title to it perfect in the plaintiff, so as to be beyond the reach of the attaching creditors of Saul & Lally and subsequent purchasers from them? (2) Do they show a good cause of action and right of recovery against all of the defendants as copartners?

Upon the first question, the numerous authorities cited and the able arguments made would have been of great benefit to the court in a more doubtful case. An unusually full statement of the facts has been made, in order to show the real character of this...