Mayhew v. Mather

• Decision Date: 24 May 1892
• Citation: 52 N.W. 436,82 Wis. 355
• Parties: MAYHEW v. MATHER ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 355

52 N.W. 436

MAYHEW

v.MATHER ET AL.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Sheboygan county; N. S. GILSON, Judge.

Action of replevin by George C. Mayhew against Channing G. Mather and Peter Baltz to recover possession of certain cheese, or its value in default of delivery, and damages for its detention. Judgment for plaintiff on the money value of the cheese. Defendants appeal. Reversed, and judgment entered for plaintiff in the alternative as prayed.

The other facts fully appear in the following statement by WINSLOW, J.:

Replevin to recover 3,979 pounds of cheese. Plaintiff was a cheese manufacturer at Greenbush, Sheboygan county, and claimed that the defendant Mather, pretending to be the agent of William E. Smith & Co., a solvent firm of New York, agreed to purchase the cheese in suit of plaintiff, and that the plaintiff, relying on such representations as to Mather's agency, and knowing the firm of William E. Smith & Co. to be solvent, delivered the said cheese to Mather at Sheboygan; that Mather, after delivery of the cheese, denied his purchase as agent, and did not deliver the same to William E. Smith & Co., but that Mather and the other defendant, Baltz, unjustly retain the cheese. The defendants admit the delivery of the cheese by plaintiff to defendant Mather, November 1, 1889, and admit that it was never delivered to William E. Smith & Co., but deny all the other allegations of the complaint. Upon the trial it appeared that the defendant Mather claimed to have bought from plaintiff the cheese in question on his own account, and with no representation of agency for any person. This was the main ground of defense, but other contentions were also made, which appear in the opinion. At the close of the evidence, after a motion for nonsuit was made and overruled, the defendants requested a special verdict. The following proceedings took place: “Plaintiff waived the recovery of the property, and asked to recover the value of the cheese set forth in the complaint, less the amount of the check paid on it, with interest from the date of the commencement of the action. That will avoid the need of adopting the form of verdict in replevin. Defendants' counsel: ‘The court does not need to submit that general verdict, because the taking of this cheese and the detention of it are all in the case by undisputed evidence. There is not anything except the simple question of title that is to be determined. If there are any facts to be determined, these are the ones to be submitted to the jury.’ The defendants requested the court to submit questions to the jury as follows: ‘(1) When did the plaintiff, Mayhew, first know that the defendant Mather had sold and delivered the cheese to the defendant Baltz? (2) What was the value of the cheese per pound? (3) Did Mather suppose and believe that the plaintiff, Mayhew, knew that he was buying the cheese in question not as agent, but as purchaser?’ The court directed the jury to answer the following questions, which, with the answers written thereunder, constitute the special verdict returned by the jury, as herein stated: ‘(1) Was it the understanding of the plaintiff at the time of the shipment of the cheese in question that W. E. Smith & Co. were purchasers thereof? Answer. Yes. (2) Did the defendant Mather suppose and believe that the plaintiff, Mayhew, knew that he was buying the cheese in question not as agent, but as purchaser? A. No. (3) When did the plaintiff, Mayhew, first know that the defendant Mather had sold and delivered the cheese to the defendant Baltz? A. About the time the suit commenced. (4) What was the value of the cheese in question, per pound, at the time of the delivery on the 1st day of November, 1889? A. 9 cents.’ Defendants moved for judgment, or, if that motion was not granted, for an order setting aside the verdict and for a new trial, both of which motions were overruled, and the court made further findings of fact in the case as follows: ‘(1) That the plaintiff was the owner and entitled to the possession of the property mentioned in the complaint at all the times therein mentioned, to wit, three thousand nine hundred and seventy-nine (3,979) pounds of cheese. (2) That the same was converted by the defendant Channing G. Mather on or about November 1, 1889, and was by said Mather unlawfully sold and delivered to the defendant Peter Baltz on or about December 1, 1889. (3) That the value thereof, at nine cents per pound, as found by the jury, was of the date of conversion by the said defendant Mather. (4) That the value thereof, at the time of the delivery to the said defendant Baltz, as shown by his testimony, was seven and one-half cents per pound, making the total value of the cheese at such time two hundred ninety-eight dollars and forty-three cents, ($298.43.) (5) That the sum of one hundred and forty-three dollars and thirteen cents, ($143.13,) admitted by the pleadings to have been paid to the plaintiff and received by him, should be, under the plaintiff's tender, deducted from said value, to wit, making the balance of plaintiff's damages against both defendants the sum of one hundred and fifty-five dollars and thirty cents, ($155.30,) and interest thereon from commencement of action, December 21, 1889.’ And the plaintiff thereupon elected to remit from the said special verdict one and one-half cents per pound to make the value of the cheese seven and one-half cents per pound. And as conclusions of law thereupon: ‘(1) That the plaintiff is entitled to and have judgment against the defendants, and each of them, for the said sum of one hundred and fifty-five dollars and thirty cents ($155.30) and interest as aforesaid, and for his costs and disbursements of this action.’ ” Judgment was rendered in accordance with the findings, and defendants appeal.Nash & Nash, for appellants.

Seaman & Williams, for respondent.

WINSLOW, J., ( after stating the facts).

It appears that the dealings between the plaintiff and the defendant Mather began in May, 1889, when the plaintiff claims that an arrangement was made between them by which he (plaintiff) was to make and deliver to defendant cheese for the season to fill orders from William E. Smith & Co. of New York. The cheese was to be stenciled with the name of William E. Smith & Co., and delivered to defendant at Sheboygan, at the market price. The defendant claims that the arrangement in May was only for some white cheese to fill one order from William E. Smith & Co., and extended no further. Whatever the arrangement in fact was, the evidence showed that plaintiff shipped cheese to defendant every week or two all summer, all of which was stenciled “Wm. E. Smith & Co.,” except some exceptional lots, which Mather ordered...