Pratt v. Peck

• Decision Date: 16 March 1886
• Citation: 27 N.W. 180,65 Wis. 463
• Parties: PRATT v. PECK AND OTHERS.
• Court: Wisconsin Supreme Court

65 Wis. 463

27 N.W. 180

PRATT

v.PECK AND OTHERS.

Supreme Court of Wisconsin.

Filed March 16, 1886.

Appeal from circuit court, Winnebago county.

This is an action to recover the purchase price of 400,000 feet of lumber, the most of which was destroyed by fire while piled in the plaintiff's mill-yard at Oshkosh. August 9, 1883, the plaintiff was the owner of a saw-mill in Oshkosh, and engaged in the business of manufacturing saw-logs into lumber. Near the plaintiff's premises, but in a different block, the defendants, at the same time, owned a sash, door, and blind factory, and were engaged in the manufacture of such articles therein. On the day named it was verbally agreed between the parties that the plaintiff would sell, and the defendants purchase, all the first, second, and third clear and common shop stock of one and one-half and one and one-fourth inch plank, then piled in the plaintiff's mill-yard of the previous year's and spring's cut, estimated to be about 600,000 feet, and 400,000 feet of the next thereafter sawed in the plaintiff's mill of plank lumber, one and one-half and one and one-fourth inches thick, first, second, and third clear and common shop stock, of which one-third was to be one and one-fourth inches thick, and two-thirds thereof one and one-half inches thick, for which the defendants were to pay $14 per 1,000 feet for common shop stock; $24 per 1,000 feet for third clear; and $34 per thousand feet for first and second clear. The complaint alleges, in addition to the above, that the lumber in the plaintiff's yard at the time of the agreement was to be paid for in full as of September 1, 1883,--that is to say, in cash, or interest-drawing bankable notes; and the 400,000 feet, thereafter to be cut and sawed, to be paid for in 90 days after it should be piled in the plaintiff's mill-yard, without interest; that in and by the agreement the plaintiff was to draw said lumber to the defendants' factory, along from time to time, as the defendants needed the same in operating their factory. The whole controversy relates to the delivery and acceptance of the 400,000 feet, and the issues made by the pleadings relate mainly to those questions.

At the close of the evidence, and before argument to the jury, the defendants demanded a special verdict, and requested the court to submit to the jury the following questions, to-wit: “(1) At what time, or upon the happening of what event, did the parties both agree that property should pass? (2) Did the minds of the parties ever meet upon any understanding that the property should pass before actual delivery by the plaintiff; that is, before the lumber was drawn by plaintiff to defendants' mill, or to such mill as he should direct? (3) Had the defendants, at the time of the fire, accepted the lumber,--the 400,000 feet of lumber? (4) What, if anything, under the contract between the parties, had the plaintiff to do to complete the contract on his part as to the 400,000 feet to be sawed? (5) Was the lumber hauled at defendants' order scaled and graded at time of hauling, and charged for by plaintiff according to such grading and scaling? (6) Was there any agreement between the parties that the title to the 400,000 feet to be manufactured should pass from plaintiff to defendants before actual delivery of lumber by hauling.”

The court refused to submit to the jury any of those questions, but did submit to them 25 questions, which, with the answers thereto, were to the effect (1) that the contract was for 1,000,000 feet, made August 9, 1883, as stated, to be of the kinds, quality, dimensions, and at the prices, and to be paid for and sawed, as stated, to-wit, the piles manufactured and then in the plaintiff's yard, estimated at 600,000 feet, and 400,000 feet thereafter to be manufactured, to be piled in the plaintiff's saw-mill yard for the defendants, (2) to be marked with the name of the defendants, (2 1/2) and to remain there piled until the spring of 1884; (17) that the plaintiff did not tell one of the defendants, on or about September 1, 1883, that the lumber was the property of the plaintiff, and at his risk until paid for, when it would become the property of the defendants, and plaintiff's insurance would not cover it; (13) that when the 400,000 feet were being piled in the plaintiff's yard, the defendants went upon the piles, but it was not scaled or inspected; (5) after the plaintiff had manufactured and piled said lumber, to-wit, October 1, 1883, he notified the defendants that said lumber had been sawed and piled; (6) that October 1, 1883, the plaintiff marked said lumber with the defendants' name on the piles thereof; (18 and 19) that the plaintiff did not ascertain the amount of the 400,000 feet of lumber sawed under the contract in any other manner than by counting the piles, and estimating the amount; (20 and 21) that the plaintiff did not ascertain the amount of first and second clear parcel of the 400,000 feet in any other way than by judging of the amount thereof that would naturally be made from the quantity of logs he was sawing; (22) that the plaintiff piled the third clear and shop common parcel of the 400,000 feet in the same piles, without any separation (23 and 24) and did not ascertain the amount thereof in any other manner than by judging of the amount of each kind that would naturally be made from the quantity of logs sawed; (16) that October 2, 1883, the plaintiff notified one of the defendants that the 400,000 feet had all been sawed and piled, and that the plaintiff's foreman had notified the defendants that the plaintiff had marked the same to the defendants, and the defendants then and there replied that it was all right; (7) that after the burning of the defendants' factory, (October 4, 1883,) and before the destruction of the lumber in question, the defendants requested the plaintiff to sell for them this 400,000 feet of lumber, (8) and they also, during that time, offered and endeavored to sell the same to Gould, of Oshkosh; (14) that, before the destruction...