Lillie v. Dunbar

• Decision Date: 03 February 1885
• Citation: 62 Wis. 198,22 N.W. 467
• Parties: LILLIE v. DUNBAR.
• Court: Wisconsin Supreme Court

62 Wis. 198

22 N.W. 467

LILLIE

v.DUNBAR.

Supreme Court of Wisconsin.

Filed February 3, 1885.

Appeal from circuit court, Marathon county.

C. F. Eldred and Neal Brown, for respondent.

Silverthorn, Hurley & Ryan, for appellant.

TAYLOR, J.

This was an action of replevin to recover the possession of a quantity of pine lumber which the respondent claimed to own, and which was, at the commencement of the action, in the possession of the appellant, who also claimed to own the same. The evidence established the following facts: First. That the lumber in question had been manufactured out of logs and timber which had been cut by one H. M. Wilcox from lands described in a contract introduced in evidence by the appellant, made between him and Wilcox, as the “Kickbush lands.” Second. That the timber so cut from the “Kickbush lands,” and out of which the said lumber had been manufactured, was the timber of the respondent by virtue of a written contract of purchase from Kickbush, the owner of the land. Third. That Lillie, being the owner of said timber, with the right to cut and remove the same from said land, in the summer of 1882 made a verbal contract with said Wilcox to sell him all the pine timber on the “Kickbush lands” for $100, but upon the express condition that the title to the timber so sold should remain in the said Lillie until the $100 was paid. Fourth. That the $100 was to be paid to the respondent by Wilcox, with 10 per cent. interest, in the fall of 1882. Fifth. After the verbal contract so made between Lillie and Wilcox, Wilcox entered into a written contract with the appellant, which was given in evidence on the trial, by which he agreed to cut the timber sold to him by Lillie as well as other timber, and manufacture it into lumber and shingles, and deliver it to the appellant at certain stipulated prices. Upon this written contract appellant paid down, at the time it was made, in November, 1882, $300. Under this contract the logs cut by Wilcox, and delivered at his (Wilcox's) or the McIntosh mill, were to be the property of the appellant when so delivered. The logs out of which the lumber in controversy was manufactured were cut on the “Kickbush lands” by Wilcox, and delivered and manufactured at his mill under the contract between Wilcox and the appellant some time before this action was commenced. Seventh. There is evidence tending to show, at least, that before Wilcox had cut the timber on the “Kickbush lands,” and delivered it at his mill, the respondent notified the appellant that he claimed the lumber or timber on said land, or, at least, that he claimed Wilcox should pay him $100 before he was authorized to sell or dispose of the same.

Upon this state of facts the plaintiff had a verdict and judgment in his favor for the sum of $100 and interest, with costs; it appearing that the lumber described in the complaint had been delivered to the defendant as provided by law, on his giving security, etc. Upon the appeal from this judgment it is contended by the learned counsel for the appellant that the evidence conclusively establishes the right of the appellant to the possession of the property at the time the action was commenced, and that as a consequence the court should have directed a verdict in favor of the appellant. It is admitted that the only right the appellant had to the property was derived under the contract made between Wilcox and the appellant, and it is also admitted that the only right Wilcox had to the timber and lumber was the right Wilcox derived from Lillie by virtue of this contract between Lillie and Wilcox. Whatever title, therefore, the appellant had to the property, must be derived from the respondent through Wilcox.

It is not seriously contended that in a contest between the respondent and Wilcox as to the possession and ownership of the property after default made by Wilcox in the payment of the agreed purchase money, the title and right of possession would not be in the respondent. The only right Wilcox shows to the property is the right derived under the parol contract with the respondent, by the very terms of which the title to the property was to remain in the respondent until the purchase price was paid; and it is clear that if such contract had been in writing, so that there was no question as to its binding effect in law, the right to the possession of the property would be in the respondent until he received his pay, and that a sale and delivery thereof to a third person before such payment was made, without the consent of the respondent, would be a conversion of the property and entitle the plaintiff to an action of replevin or trover, at his option. This has been so held by this court. Cadle v. McLean, 48 Wis. 630;S. C. 4 N. W. REP. 755. See, also, Sawyer v. Fisher, 32 Me. 28; Prentiss v. Garland, 67 Me. 345; Homans v. Newton, 4 Fed. Rep. 880.

This proposition is denied by the learned counsel for the appellant. The denial of the proposition is based upon another proposition, viz., that the standing timber on the “Kickbush lands,” the title to which was vested in Lillie, by virtue of his written contract with Kickbush, who owned the land, converted the standing and growing timber into personal property, as between Lillie and any other person claiming under him, and that, consequently, his parol sale of the standing timber to...