Savage v. Pratt

• Decision Date: 07 February 1956
• Citation: 272 Wis. 170,74 N.W.2d 635
• Parties: Dan SAVAGE d/b/a Savage Novelty Co., Appellant, v. Inez PRATT, Respondent.
• Court: Wisconsin Supreme Court

Page 635

74 N.W.2d 635

272 Wis. 170

Dan SAVAGE d/b/a Savage Novelty Co., Appellant, v. Inez PRATT, Respondent.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Rehearing Denied April 3, 1956.

Winter & Winter, Shawano, for appellant.

Ken Traeger, Gresham, for respondent.

BROADFOOT, Justice.

The parties and the trial court agreed that the question of who had superior title to the juke box should be determined according to the provisions of sec. 122.09, Stats., which reads as follows:

'When goods are delivered under a conditional sale contract and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the reservation of property shall be void against purchasers from the buyer for value in the ordinary course of business, and as to them the buyer shall be deemed the owner of the goods, even though the contract or a copy thereof shall be filed according to the provisions of this chapter.'

Only one Wisconsin case is cited under annotations to this section of the statutes. That case is Thorne v. State Bank of Platteville, 193 Wis. 97, 213 N.W. 646, and it involved the sale of a stock of general merchandise. There was express authority to sell from said stock at retail and that case is of little help in the determination of this case. The trial court instructed the jury that there was no express consent to a resale of the juke box and the question to be determined is whether the record will support a finding that the plaintiff impliedly consented to a resale. The rule is stated in 78 C.J.S., Sales, § 574, p. 297, as follows:

'If an implied consent of the seller to a resale is relied on to defeat his reservation of title, it must appear either that he had actual knowledge of the buyer's intent to resell or that he had knowledge of such facts as would bind him with constructive notice of such intent. The seller may assert his reserved title against a purchaser from the buyer in the absence of evidence that he knew or should have known that the buyer was a dealer in such property and bought to resell, and this is especially true where the contract provided that if there was a resale the purchase price should instantly fall due.'

There are annotations on the subject in 47 A.L.R. 85 and 88 A.L.R. 109. Most of the cases deal with the sale of automobiles. There appear to be two lines of cases in which the title of the subvendee is held to be superior to that of the conditional seller. These are cases in which goods are sold to a retail dealer in the same kind of goods and where the conditional seller has knowledge of an intent to sell because the goods are ordered for delivery to a third person. In McCombs v. Guild, 77 Tenn. 81, 9 Lea 81, the conditional buyer of a piano offered it for sale in a sewing machine store where he had other pianos and sold it without the knowledge of the conditional seller, and the court held those facts did not deprive the conditional seller of his property. The court added:

'If the proof had shown that the purchaser was a regular dealer in pianos, that the plaintiffs knew the fact, and sold him the piano as such dealer, there might be strong ground for holding the plaintiffs to the consequences of such a transaction. But in the absence of such proof, the facts are not sufficient to sustain an affirmative answer to the question.'

In First National Bank of Binghamton v. Arthur Hermann Co., Inc., 275 App.Div. 415, 90 N.Y.S.2d 249, the subvendee's title was held good. In that case the conditional buyer was openly in the business of selling juke boxes as well as being an operator. He had a show room in his home. At the time he purchased the machine in question he told an officer of the company that he wanted the machine for resale. No objection was made and the buyer's testimony to that effect was undisputed. Also the company later made inquiries about territorial infringement in sales which indicated clearly that the conditional seller knew the goods were intended for resale.

The Tennessee Case was decided prior to the adoption of the Uniform Conditional Sales Act. However, in great part the Uniform Act...