J. H. Silkman Lumber Co. v. Hunholz

• Decision Date: 24 September 1907
• Citation: 132 Wis. 610,112 N.W. 1081
• Parties: J. H. SILKMAN LUMBER CO. v. HUNHOLZ.
• Court: Wisconsin Supreme Court

132 Wis. 610

112 N.W. 1081

J. H. SILKMAN LUMBER CO.

v.HUNHOLZ.

Supreme Court of Wisconsin.

Sept. 24, 1907.

Syllabus by the Judge.

Mere words inter partes will not effect a transfer of possession and title as between buyer and seller so as to satisfy the statute of frauds as regards a verbal sale of personal property exceeding in value $50.

Where the subject of a verbal sale agreement of personal property is in the possession of the contemplated vendee as bailee or to some extent, by reason of its being on his premises by his permission, the mere agreement consisting of an offer to sell on specified terms and acceptance thereof does not work a change of possession so as to satisfy the statute.

To satisfy the statute of frauds in a situation such as last mentioned there must be some affirmative act on the part of the purchaser, manifesting an intention to accept the property under the sale agreement, in order to make transition of title from seller to purchaser.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by the J. H. Silkman Lumber Company against John Hunholz. Judgment for defendant, and plaintiff appeals. Affirmed.

Action to recover on an alleged executed verbal contract for the sale of a quantity of lumber at $22.00, per thousand feet, amounting to $275.00.

The issue was respecting whether a contract for a sale of lumber by plaintiff to defendant was made which was binding on the latter under the statute of frauds. Defendant denied the alleged sale and claimed that if the pretended contract sued upon was made it was wholly verbal and never progressed beyond an agreement, executory on both sides, and so was void under the statute of frauds. There was evidence to this effect: Defendant, who operated a lumber yard, ordered a car load of lumber of plaintiff to be shipped to such yard. When it arrived the lumber was rejected as not satisfactory. Plaintiff unloaded the lumber and piled the same as its own, partly on railroad ground and partly on defendant's premises by his permission. Plaintiff's agent, after selling part of the lumber, repiled the residue by defendant's permission in his yard. Such agent testified that later he offered the lumber to defendant at $22.00 per thousand feet; that the latter accepted the offer and that later he delivered to him an invoice of the property. There was further evidence that still later plaintiff sent defendant a statement of the lumber. He denied having received but one statement and claimed to have returned that to the plaintiff. There was no proof that he at any time exercised control over the property. There was evidence that subsequent to the alleged sale plaintiff's agent offered to dispose of some of the lumber to a third person. He explained that he did so because defendant had sold his yard and wanted plaintiff to help him out by taking the lumber back.

The cause was submitted to the jury for a general verdict. The effect of the instructions was to make the cause turn on whether there was an accepted offer of the lumber at $22.00, per thousand feet and an acceptance of the lumber pursuant thereto so as to effect a change of possession and title. The verdict was in defendant's favor. Judgment was rendered accordingly.Chas. T. Hickox, for appellant.

Samuel M. Field, for respondent.

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

As we view this case the exceptions presenting the question of whether there was any evidence tending to show that the alleged verbal agreement for a sale of the lumber was so far executed as to render it binding upon appellant are all that need be considered. The value of the property involved being over $50.00, a verbal sale thereof was not effective unless characterized by the buyer receiving and accepting the property or some part thereof under the contract, since no claim is made that any payment was made on such contract. Section 2308, St. 1898.

The evidence shows without serious, if any, question that appellant took possession of a part of respondent's lumber yard under a license from the latter and piled the lumber in question thereon as its own property; that thereafter it continued in possession of such lumber and the land on which it was piled up to the time of the alleged sale to respondent; that during the time indicated the latter did not have possession of the property as bailee or in any respect; that after such alleged sale the physical situation remained exactly as before; no act on the part of respondent occurring accepting the lumber or indicating an acceptance of it, or inconsistent with the title to the property remaining as it was prior to such alleged sale.

Now it is quite elementary that in case of a verbal sale of personal property mere words, inter partes, will not, under the statute of frauds, effect a change of possession of the subject of the transaction from the...