Roberts v. McWatty

• Decision Date: 10 January 1905
• Citation: 123 Wis. 598,102 N.W. 18
• Parties: ROBERTS ET AL. v. MCWATTY ET AL.
• Court: Wisconsin Supreme Court

123 Wis. 598

102 N.W. 18

ROBERTS ET AL.

v.MCWATTY ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by D. M. Roberts and another against Robert J. McWatty and another. From a judgment for defendants, plaintiffs appeal. Reversed.

In 1903 Romanzo Parks and John Parks were engaged in business at Middleton, Dane county, Wis. They owned and had in their possession at this place a stock of hardware. They had engaged a Mr. Gray to secure a purchaser of the stock in bulk, or an exchange thereof for other property. Plaintiffs owned a tract of real estate in Price county. They and the Parks brothers negotiated for an exchange of properties, resulting in the making of a contract on June 26, 1903, whereby plaintiffs, in consideration of $5,600, to be paid them by R. Parks and J. Parks in the manner specified in the contract, did agree to and did sell them this real estate, bargaining and agreeing to convey a good title, free and clear from incumbrances and liens. It was further agreed as follows: “In consideration of the foregoing agreement * * * R. Parks and J. Parks * * * hereby sell, assign, transfer and convey unto * * * plaintiffs, * * * as part consideration hereof, a stock of hardware merchandise of good title and clear of lien or incumbrance, * * * the same to be applied on the purchase price, at the invoice price to be fixed by an invoice to be made commencing Monday, June 29, 1903, and completed as soon as possible, said stock to be invoiced under the supervision of some person expert in hardware prices to be selected by * * * plaintiffs; * * * the balance of the purchase price to be paid as soon as the invoice is completed and not later than July 1st, 1903.” It was further agreed that the stock of hardware should not exceed in amount the sum of $2,800; that plaintiffs assumed the lease of the store building wherein the stock was kept for two months from July 1, 1903, and that the lease should be canceled by agreement with the owner before July 1, 1903, plaintiffs to pay two-thirds and the Parks brothers one-third of the cost of such cancellation; that any commission due Mr. Gray for bringing the parties to this exchange of properties together was to be paid by them in the same proportion, respectively, as the cost of canceling the lease; and that plaintiffs were to and did pay Mr. Parks the expense of the trip to inspect the real estate. A Mr. Thorsness was selected by plaintiffs as expert in fixing the invoice price of the hardware. The taking of the inventory was commenced on the morning of June 29th, and continued to the evening of June 30th; Mr. Thorsness, the plaintiff Roberts, and the two Parks brothers taking part. On the following day, July 1st, Romanzo Parks took no part. The other parties attempted to continue invoicing, but disagreed as to the invoice price of articles, and did not finish invoicing on this day. The invoicing was then suspended, plaintiffs claiming that it was agreed to be resumed on the following Tuesday, July 7th. The other conditions of the contract as to the payment of rent and cancellation of the lease of the store building, the adjustment of Mr. Gray's commission, the furnishing of the abstract and delivery of a deed of the real estate, had not been executed at the time of the levy made by defendants. Plaintiffs, as the alleged owners of this stock of hardware under this contract, bring this action to recover the value of the goods so taken by defendants under an execution levy against Parks brothers. The defendants, acting in the capacity of sheriff, claim the right to seize this merchandise as the property of the Parks brothers for the benefit of their creditors, and assert that the Parks brothers are the owners thereof, and that the attempted exchange of this stock of hardware is fraudulent and void as to the...