Hansen v. Roter

• Decision Date: 01 December 1885
• Citation: 25 N.W. 530,64 Wis. 622
• Court: Wisconsin Supreme Court
• Parties: HANSEN v. ROTER AND OTHERS.

64 Wis. 622

25 N.W. 530

HANSEN

v.ROTER AND OTHERS.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Marathon county.

R. B. Satter, for respondent, George M. Hansen.

G. J. Follett and Silverthorn, Hurley & Ryan, for appellants, L. R. Roter and others.

COLE, C. J.

The basis of this action is a parol executory contract for the sale and delivery of a quantity of logs. The amount claimed to be due on the contract or for the breach thereof is about $100. The plaintiff in his testimony states the terms of the contract, and the circumstances under which it was made, in substance, as follows: He says: “I made arrangements with the defendants to get out logs in the fall of 1882, or winter; it was in Mr. Roter's store, at Abbottsford. I asked Mr. Roter if he would buy logs from us fellows up there. He said he would; that he would take all the logs I could get out. He told me the price he was going to pay for logs. He told me and Mr. Anderson that he would pay us the same price, viz., * * * for each and every thousand feet of the different kinds. * * * I was to put the logs by the railway track which runs by my place.” The plaintiff further testified that Roter agreed to go and scale the logs got out every month, and pay for them, but did not do so. It appears that the plaintiff during the winter of 1882-83 deposited a quantity of logs at the place designated, which the defendants upon examination refused to accept and receive, because they were not merchantable. The defendants never have received any of the logs for that reason. Now, on this state of facts, which we think we must assume to be correct, counsel for the defendants takes the point that the contract is within the statute of frauds, and void. The objection seems to us insuperable. It is needless to cite the statute, as it is familiar to all. But it is attempted to avoid the force of the objection by saying that when the plaintiff delivered the logs at the place agreed upon the title to them passed to the defendants, and the sale became perfect and complete. But there is not a particle of proof to sustain such a position. It was doubtless competent for the parties to agree that when the logs were deposited along the track of the railroad this should be a delivery of them to the defendants, and the title should pass even though they were to be subsequently scaled to ascertain the quantity to be paid for. That was the case in Morrow v. Reed, 30 Wis. 81. But there is no evidence of such a contract being made. The plaintiff does not swear that this was the contract, and there is nothing which will warrant the assumption that the parties ever intended such a result should follow.

The case in its leading feature is much like Pike v. Vaughn, 39 Wis. 499, and is ruled by that decision. So there is no ground for claiming that the contract was fully executed by a delivery and acceptance of the logs so as to take it out of the statute. There is not a particle of proof which will sustain such a conclusion. Nor is there any ground for saying that the defendants paid some part of the purchase money, so as to supply the place of a written contract. The plaintiff says his talk with Mr. Roter about selling the logs was before Christmas, 1882; that sometime afterwards he was in Mr. Roter's store, and got a pair of boots on the strength of hauling these logs. At the same time he also got some feed,...