Gunderson v. Swarthout

• Decision Date: 20 October 1899
• Citation: 80 N.W. 465,104 Wis. 186
• Parties: GUNDERSON v. SWARTHOUT.
• Court: Wisconsin Supreme Court

104 Wis. 186

80 N.W. 465

GUNDERSON

v.SWARTHOUT.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by H. Gunderson, as receiver, against E. C. Swarthout, to regain possession of certain machines. From a judgment in favor of plaintiff, defendant appealed. Reversed.Thomas Morris and Losey & Woodward, for appellant.

Ray S. Reid, for respondent.

CASSODAY, C. J.

This is an action commenced February 8, 1898, to recover a certain electrical machine known as a “dynamo,” and a certain other electrical machine known as an “exciter,” together with certain belts used in operating the same, or the sum of $1,600, the value thereof, in case a delivery cannot be had, together with damages and costs. Issue being joined, and trial had, and at the close thereof the jury returned a verdict wherein they found for the plaintiff, and that the articles of property mentioned were not fixtures, and that the value thereof was $1,500, and thereupon, and in pursuance of the order of the court, judgment was entered in favor of the plaintiff and against the defendant for $1,500 damages and $74.89 costs. From that judgment the defendant brings this appeal.

It appears from the record, and is undisputed, that December 27, 1893, the McMillan Mill & Power Company was incorporated; that October 22, 1894, the lands in question and described were deeded to that company, and the deed was recorded; that November 14, 1894, the company gave a mortgage upon these lands to one A. S. Swarthout, father of the defendant, for $7,000, with which to construct the plant in question, and which mortgage was duly recorded; that the plant was never used for any other purpose than manufacturing and furnishing electric light; that April 2, 1895, the company procured a franchise from West Salem to put up poles and wires and furnish light in that village; that September 3, 1895, that company accepted a proposition made by the Stanley Electric Manufacturing Company to rent the dynamo, exciter, and belts in question, and allow the rental to apply on the purchase price of a larger machine, which the company had the privilege of ordering within four months from the day of shipment, and to be delivered on or before August 1, 1896, or to purchase and apply such rental on the machine in question,--the rental to begin October 1, 1895; that thereupon the dynamo, exciter, and belts were delivered to the company, and by the company placed upon the premises in question, and used in operating the company's electric plant; that in January, 1896, and in pursuance of the contract for purchase and lease so made, the company purchased the dynamo, exciter, and belts in question, and then in use in its electric plant mentioned; that May 7, 1897, such proceedings were had that the plaintiff was appointed receiver of all and singular of the property and assets of the McMillan Mill & Power Company; that the mortgagee, A. S. Swarthout, died testate in March, 1896; that his will was duly admitted to probate; that such mortgage was foreclosed, and the property sold by the sheriff on the judgment of foreclosure and sale to the defendant, and duly conveyed to him by the sheriff's deed, dated October 7, 1897 and recorded; that at the commencement of the trial of this action the parties stipulated to the giving of the mortgage, and the foreclosure and sale of the premises upon which the machines in question were situated, and that the sheriff's deed upon such sale vested in the defendant all the rights which would follow to the grantee on such foreclosure and sale; that the receiver was appointed as stated, and that the suit might proceed without the formality of a writ of replevin going into the hands of any officer or any officer taking charge thereof; that no replevin bond should be required, and no actual service of the writ should be had, and that all formalities be dispensed with. The evidence is to the effect that the dynamo weighed 3 1/2 tons; that the lower floor of the mill building was solid rock; that on this rock floor a pier about 5 feet square and 16 inches high was built of rock and cement; that the top of it was covered with a bed of cement, and on and in this bed of cement was laid a frame of timbers about 3 1/2 feet square; that such cement as was left was mixed up with broken stone, and thrown inside the wooden frame; that the dynamo was then set on the top of the wooden frame, and was fastened to it by lag screws going down into the timbers; that it remained and was operated in such way for about six months, when a second foundation was built for it,...