Hoeffler v. Carew

• Decision Date: 08 May 1908
• Citation: 116 N.W. 241,135 Wis. 605
• Parties: HOEFFLER v. CAREW ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 605

116 N.W. 241

HOEFFLER

v.CAREW ET AL.

Supreme Court of Wisconsin.

May 8, 1908.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Replevin by Adolph Hoeffler against James E. Carew and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Action of replevin for automatic slot piano under claim of absolute ownership in the plaintiff. The evidence tended to establish that for some time prior to July, 1906, one Lapine, a saloon keeper at Fond du Lac, owned the piano as a part of his saloon fixtures, being indebted for most of the purchase price therefor to the plaintiff, which was secured by an unrecorded chattel mortgage. On July 13th Lapine, after a few days of negotiation, sold his saloon with stock and fixtures to one Bethke, not including the piano, which, however, remained in the saloon. About the 13th of July, while negotiations were in progress, and after Bethke had decided not to purchase the piano, Lapine told Bethke that he had closed a deal with the plaintiff to take back the piano, and that one of his men would come and get it, and, in that event, to deliver it to him, and he handed the key of the piano to Bethke, which enabled him to take out any money that accumulated in the piano. Bethke subsequently sold to one Groesbeck, but there is no evidence of any direction to Groesbeck about the piano. While or before the negotiations for sale to Bethke were in progress, on July 2, 1906, Lapine wrote plaintiff offering to surrender up the piano in satisfaction of his liability thereon and to pay freight on same to Milwaukee. On July 5th plaintiff wrote insisting that Lapine should pay him at least $50 as a consideration of release. To this, on July 14th, Lapine replied, stating that he had sold out and could not pay the $50, and substantially reiterated the former proposal. Upon the 16th plaintiff replied: “We have decided to accept your proposition, and herewith accept the instrument in settlement of any and all claims we have against you. We will have one of our men call and arrange to place the instrument with some other party when convenient, and, in case it should be necessary to move the piano before, you can advise me, and the same will receive immediate attention.” There is some evidence that an agent of the plaintiff came to Fond du Lac in August and made some inquiry, and also came in contact with defendant Bechaud Brewing Company and informed its manager that the plaintiff claimed to have a chattel mortgage upon the property; that defendant brewing company, thereupon ascertaining that no chattel mortgage was on record, sued out an attachment, and caused the same to be levied upon the piano as the property of Lapine. Whereupon plaintiff brought this action. The court submitted to the jury two forms of verdict: First, as to whether the plaintiff had a chattel mortgage interest therein; and, second, whether he had absolute ownership of the piano. The jury found absolute ownership and right of possession, also an amount of damages for detention; whereupon judgment was entered, from which the defendants appeal.Husting & Husting, for appellants.

O. E. Ecke, for respondent.

DODGE, J. (after stating the facts as above).

1. The first assignment of error is upon the court's refusal to direct a verdict for the defendants, the motion being predicated upon two contentions: First, that no delivery was shown sufficient to pass title from Lapine to plaintiff inter sese; second, that there was no proof of an “immediate delivery followed by an actual and continued change of possession,” absence of which, by section 2310, St. 1898, aroused a presumption of fraud in such transfer.

With reference to the first position, it is very fully established that the actual transition of title from one to another in pursuance of a contract of sale is almost entirely a matter of intention. Very slight acts of either surrender of possession by the seller or acquirement of dominion by the purchaser are often sufficient to evince such intention. Indeed the intention may exist and have effect in the absence of any change of possession whatever. Sewell v. Eaton, 6 Wis. 490, 70 Am. Dec. 471;Abraham v. Karger, 100 Wis. 387, 76 N. W. 330;Fromme v. O'Donnell, 124 Wis. 529, 532, 103 N. W. 3;Seivert v. Galvin (Wis.) 113 N. W. 680;Taylor v. Tigerton Lumber Co. (Wis.) 114 N. W. 122;Warshawsky v. Rosengarten (Wis.) 114 N. W. 497. There is certainly enough in the evidence to warrant an inference of intent that title should pass from Lapine to the plaintiff upon receipt of the letter of July 16th which, as appears by the quotation in the preceding statement of facts, was final in terms, and signified an understanding that upon its delivery the transfer should be complete and the indebtedness held by the plaintiff against Lapine should thereupon be canceled. Even if that intention were not so clear as to warrant the court in deciding it as a matter of law, it was at least sufficiently inferable to warrant the submission of the question to the jury.

The second contention that there was no evidence of any such delivery and change of possession as is demanded by section 2310 would not of itself justify the court in directing a verdict for the defendants, for the question would still be open, either for the court or the jury, whether the presumption of fraud had been overcome by other evidence. Taylor v. Tigerton Lumber Co., supra; Bullis v. Borden, 21 Wis. 136.

2. The second assignment of error is that the court erred in overruling defendants' motion for a new trial. This is very inadequate compliance with our rule 10 (108 N. W. vi) that “the brief of the appellant shall contain a concise...