Snider v. Thrall

• Decision Date: 30 January 1883
• Citation: 14 N.W. 814,56 Wis. 674
• Parties: SNIDER v. THRALL.
• Court: Wisconsin Supreme Court

56 Wis. 674

14 N.W. 814

SNIDER

v.THRALL.

Supreme Court of Wisconsin.

Filed January 30, 1883.

Appeal from county court, Winnebago county.

James Freeman, for appellant, R. A. Snider.

John W. Hume, for respondent, Cyrus W. Thrall.

COLE, C. J.

We think there is no sufficient reason for holding that evidence of the sale of the house by the defendant to the plaintiff upon the chattel mortgage was not admissible under the answer. The answer, in fact, sets up, both as a defense and by way of counter-claim, the sale of the house for the agreed price of $140, which the plaintiff was to pay in work and materials on demand. What more was it necessary to state in the answer to admit all evidence in regard to the sale of the house? This house seems to have been treated by the owner of the realty as personal property. Boyd gave a chattel mortgage upon it to the defendant when he owned the lot on which it was situated. He testified that he sold the premises to Perkins, subject to the mortgage. The plaintiff bought the premises of Perkins, and says that he purchased this house of him and entered into possession thereof. In this statement, that he purchased the house of Perkins, he is contradicted by other witnesses.

The county court found as a fact that the defendant, on the ninth of June, 1873, sold and delivered to the plaintiff the house for the sum of $140, which sum the plaintiff agreed to pay in cash, and in work, services, and materials, upon demand. This finding is amply sustained by the evidence. But the learned counsel for the plaintiff insists that the sale of the house was void, because no note or memorandum of the contract in writing was made and subscribed by the parties to be charged, so as to take the case out of the statute of frauds. It appears that at the time of this sale the plaintiff was in possession of the house and premises. The court finds that the plaintiff went into possession of the house under the sale and has occupied the same ever since. If the plaintiff did take possession of the house under the sale made by defendant, as found by the court, this would meet the conditions of the statute. The transaction then would amount to a delivery of the house by the vendor, or, at all events, it would be all the delivery that could be made, when the nature of the property was considered. It seems to us it would be a complete and perfect sale and delivery of the house, so that thereafter the title would be in the plaintiff. Now,...