Ostrander v. Everest

• Decision Date: 01 November 1890
• Citation: 47 N.W. 54,44 Minn. 419
• Parties: OSTRANDER v EVEREST.
• Court: Minnesota Supreme Court

44 Minn. 419

47 N.W. 54

OSTRANDERvEVEREST.

Supreme Court of Minnesota.

Nov. 1, 1890.

(Syllabus by the Court.)

Evidence held to sustain the verdict.

Appeal from district court, Crow Wing county; STEARNS, Judge.

Action in the nature of replevin by Orin Ostrander, plaintiff, to recover from the defendant, W. H. Everest, the possession of certain logs or their value. Plaintiff's claim of title was based on the facts, of which there was evidence, that between November 15, 1888, and March 13, 1889, he had cut the logs in question, and hauled them to the mill of one Joel Smith, under an agreement with one Monroe, for a certain price per thousand feet, and that he claimed an interest in them for his unpaid labor; that thereafter, on March 13, 1889, Monroe, for a consideration expressed, executed a bill of sale of his right to the logs to plaintiff. Defendant claimed title under the following: “Crow Wing, Minn. Dec. 13, 1888. I hereby agree to pay Chester E. Monroe four & 75-100 dollars per thousand for fifty-six thousand feet of white pine logs, to be delivered on millyard at Joel Smith's mill; the logs to be sound and free from rot; to be scaled by a proper person; and no portion of it to be due until April 1st, 1889. W. H. EVEREST.” There was evidence that the logs in question were intended by Monroe to be a delivery under this agreement with defendant, and that defendant had scaled, accepted, and paid for them in March, 1889. There was evidence that the scaling and acceptance by defendant was after the execution of the bill of sale to plaintiff, who had no knowledge at that time of Monroe's agreement with defendant. Plaintiff had a verdict. From an order denying a new trial defendant appeals.

W. S. McClenahan, for appellant.

Wetherby & True, for respondent.

GILFILLAN, C. J.

The only question in the case is, was plaintiff's purchase of the logs from Monroe, or the scaling and delivery of them to defendant, under his contract with Monroe for the purchase by defendant, not of any particular logs, but of 56,000 feet of logs, prior in point of time? It was a question for the jury, and there is evidence to sustain their finding for plaintiff. Order affirmed.