Kerhof v. Atlas Paper Co.

• Decision Date: 12 April 1887
• Citation: 68 Wis. 674,32 N.W. 766
• Parties: KERHOF v. ATLAS PAPER CO.
• Court: Wisconsin Supreme Court

68 Wis. 674

32 N.W. 766

KERHOF

v.ATLAS PAPER CO.

Supreme Court of Wisconsin.

April 12, 1887.

Hudd & Wigman, for appellant.

Moses Hooper, for respondent.

COLE, C. J.

In this case the plaintiff moved for judgment upon the special verdict. The court denied this motion, and gave judgment dismissing the complaint upon the merits. If the facts found in the special verdict are insufficient to warrant a judgment for the plaintiff, this ruling must be affirmed. The action is brought upon a parol executory contract for the sale and delivery of a quantity of pine cord-wood. The price of the wood amounted to $500 or $600, and the court undoubtedly considered that the contract was within the statute of frauds, and the facts found in the special verdict failed to show that the plaintiff was entitled to recover. In that view of the case, we think the court was entirely correct. The jury failed to find upon the question of acceptance. Indeed, that issue was not submitted, probably because there was no evidence of an acceptance of the wood by the defendant. In its answer the defendant put its refusal to accept upon the ground that the wood was purchased for the manufacture of wood pulp for making paper, and that the wood furnished was unfit for that purpose. The jury, however, found that the plaintiff cut, hauled, and banked, at the place designated, on the Fox river, 230 cords of dead wood, of the quality specified in the contract. The jury also found that, after 200 cords of wood had been banked, the defendant paid $250 towards the wood, but that it did not then know the quality of the wood which had been banked. This is the substance of the special findings. It will be observed that the verdict is silent on the material issue of acceptance or non-acceptance of the wood by the defendant. Under the circumstances, it was essential for the plaintiff to prove, and for the jury to find, an acceptance to take the case out of the statute. Every special verdict should submit all material controverted facts. Pratt v. Peck, 65 Wis. 463, 27 N. W. Rep. 180, and cases cited in the opinion. As has been said, the contract was a parol executory one, for the sale of wood for a price exceeding $50. Nothing was paid, at the time the agreement was entered into, upon the purchase money. The contract came precisely within section 2308, Rev. St., and was void if that statute is now in force, or unless the contract was fully executed by delivery and acceptance. This point has been so often ruled by this court that it is necessary to refer to only a few of the decisions upon it: Smith v. Stoller, 26 Wis. 671;Nichols v. Mitchell, 30 Wis. 329;Bates v. Chesebro, 32 Wis. 594, and 36 Wis. 636;Paine v. Fulton, 34 Wis. 83;Mason v. H. Whitbeck Co., 35 Wis. 164;Pike v. Vaughn, 39 Wis. 500;Bacon v. Eccles, 43 Wis. 227;Hanson v. Roter, 64 Wis. 622, 25 N. W. Rep. 530. Therefore the necessity of proving the acceptance of the wood so as to pass title and show a complete performance of the contract is apparent. In no other way could the written memorandum of sale be dispensed with. But the fact of such an acceptance was not shown, nor was that question submitted to the jury, as it should have been, on proper proof.

Upon the special verdict, then, the plaintiff was clearly not entitled to have judgment for the value of the wood, since no...