Pratt v. Oshkosh Match Co.

• Decision Date: 05 February 1895
• Citation: 89 Wis. 406,62 N.W. 84
• Parties: PRATT v. OSHKOSH MATCH CO.
• Court: Wisconsin Supreme Court

89 Wis. 406

62 N.W. 84

PRATT

v.OSHKOSH MATCH CO.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from circuit court, Winnebago county; George W. Burnett, Judge.

Action by George W. Pratt against the Oshkosh Match Company for the price of lumber sold and delivered. From a judgment entered on a nonsuit, plaintiff appeals. Reversed.

It appears from the record that, during the times mentioned, the plaintiff was the owner of a sawmill in Oshkosh, and engaged in the manufacture of lumber; that June 13, 1883, A. W. Jones and W. H. Wyman were copartners in trade and business, and engaged in the manufacture and sale of matches at Oshkosh, under the firm name and style of the Oshkosh Match Company; that Jones' interest therein was three-fifths and Wyman's interest two-fifths; that June 13, 1883, Jones, in behalf of Jones and Wyman, ordered of the plaintiff 150,000 feet of boards of various lengths, and 6, 8, and 10 inches wide, at $13 per thousand feet, to be paid for 60 days after the average time that the lumber should all be manufactured; that said lumber was to be piled at a given place near the river, so as to dry readily, and marked “O. M. Co.,” and drawn to the planing mill by the plaintiff as wanted by Jones and Wyman; that a memorandum of the terms of said sale was made in the plaintiff's order book; that June 23, 1883, Jones requested certain changes to be made in the dimensions of the boards, and such changes were made in said order book as so requested; that August 4, 1883, Jones informed the plaintiff that the defendant corporation was about to be organized, and that he (Jones) would want the boards for the defendant corporation, the same as for the firm; that Jones was to be an officer and manager of the concern; that McMillen & Co. were to be associated with them as stockholders; that, by reason of the changes in the business, he desired to change the dimensions of the boards; that, after obtaining information as to the amount of work done, the plaintiff assented to such changes of dimensions, and a new memorandum of sale was entered in the plaintiff's book, in accordance with Jones' instructions; that August 17 or 18, 1883, the defendant was fully incorporated and organized as the Oshkosh Match Company, with a capital stock of 400 shares, of $100 each, of which McMillen became the owner of 174 shares, Hollister 63 shares, Davis 62 shares, Jones 60 shares, and Wyman 40 shares; that the defendant began doing business October 10, 1883; that the machinery, merchandise, tools, and stock of Jones and Wyman were put into the corporation, and credited to them, respectively, in proportion to their interest in the firm; that Jones was the superintendent of the defendant; that August 20 or 23, 1883, Jones requested the plaintiff to increase the order to 500,000 feet; that the plaintiff was unable to agree to that amount; that Jones at that time made inquiry concerning the piling of the lumber, and protested to piling boards sawed for the Diamond Match Company near, upon the ground that the two lots might become mixed; that Jones was assured by the plaintiff that the lumber would be marked distinctly “O. M. Co.” on both sides of the piles; that Jones then asked the plaintiff when the work would be completed so as to comply with the terms of payment; that August 27 or 30, 1883, Jones requested further variations as to dimensions of boards, and final changes were made in the order; that October 28, 1883, the plaintiff informed Jones that...