Spencer Co-Operative Live Stock Shipping Ass'n v. Schultz

• Citation: 245 N.W. 99,209 Wis. 344
• Parties: SPENCER CO-OPERATIVE LIVE STOCK SHIPPING ASS'N v. SCHULTZ ET AL.
• Decision Date: 09 November 1932
• Court: United States State Supreme Court of Wisconsin

209 Wis. 344

245 N.W. 99

SPENCER CO-OPERATIVE LIVE STOCK SHIPPING ASS'N

v.SCHULTZ ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from an order of the Circuit Court for Clark County; Emery W. Crosby, Circuit Judge.

Suit by the Spencer Co-operative Live Stock Shipping Association against William L. Schultz and another. From an order overruling a demurrer to the complaint, defendants appeal.--[By Editorial Staff.]

Affirmed.

Action commenced October 16, 1931, by plaintiff, a co-operative marketing association, to enjoin defendants from purchasing live stock from certain members of plaintiff association with whom it has contracts by which they agree “to market” all of their live stock “through the association,” and also to require defendants to account for live stock purchased from those members, and to recover as damages the value of the live stock so purchased. Defendants demurred to the complaint and appeal from an order entered March 1, 1932, overruling their demurrer.Drought & Drought, of Milwaukee, for appellants.

Goggins, Brazeau & Graves, of Wisconsin Rapids, for respondent.

FRITZ, J.

In the complaint, challenged by defendants' demurrer, it is alleged that the plaintiff is a co-operative marketing association organized and operating under chapter 185, Stats., and is located and engaged in business in Clark county; that prior to September 9, 1931, plaintiff entered into contracts with certain persons, all residents of said county, for the purchase of live stock from them; that said persons are members of the plaintiff association; and that each of them signed a marketing contract, which was duly filed in the office of the register of deeds for Clark county, and in which there were the following provisions:

“The member agrees to market all of his hogs, calves, sheep and cattle through the association except live stock of every character sold by him for home consumption, for home butcher, breeding and dairy purposes, as so conclusively classified by the board of directors;

“The member shall pay to the association his annual membership fees and such fees as may from time to time be prescribed by the directors to cover all costs and expenses incurred by the association in the handling and marketing of his live stock and to provide the proper reserves;

“The member expressly instructs the association to collect for his account any money which any firm, person, or corporation may consider due to the member for live stock delivered by the member, and the member hereby agrees that the association may accept any such payments and receipt therefor in the name of the member; and that such payment to the association shall operate to release the said person, firm or corporation from any corresponding obligation to the said member”--

that defendants, having knowledge of said agreements and of the record thereof, purchased live stock from said members and threatened to continue to buy live stock from the producer members of said association; and that the title to the stock so purchased by defendants was vested in plaintiff by virtue of said agreement at the time of such purchase by defendants. The complaint prays for a temporary and permanent injunction, restraining the defendants from purchasing live stock from the producers mentioned in the complaint, or other members of the association, and for an accounting for stock actually purchased, and for damages.

On this appeal from an order overruling their demurrer defendants assign as error that under the contracts, upon which this action is based, there is no sale of live stock to plaintiff, but that it is thereby merely appointed the agent of its members for the purpose of selling their live stock, and that consequently those contracts are not within the Co-operative Marketing Act, chapter 185, Stats. (1931), and that the members from whom it is alleged that defendants purchased live stock in violation of the contracts are necessary parties to this action.

[1][2] Defendants are right in their contention that the contracts in question are not contracts of sale. Instead, they are contracts of agency (Haarparinne v. Butter Hill Fruit G. Ass'n, 122 Me. 138, 119 A. 116; Kelowna Growers' Exch. v. De Caqueray, (B. C.) 70 Dom. Law Rep. 865; Johnson v. Staple Cotton Co-op. Ass'n, 142 Miss. 312, 107 So. 2;Mountain States Beet Growers' M. Ass'n v. Monroe, 84 Colo. 300, 269 P. 886), under which each member agrees to market his live stock through the association, to pay the costs and expenses incurred by the association in handling and marketing his live stock, and instructs the association to collect for his account money due on the sale of live stock and to receipt therefor in his name. But, even as contracts of agency, the contracts are within the provisions of the Co-operative Marketing Act, and, as such contracts, they can be filed in the office of the register of deeds for the purposes and effect prescribed by that act. Thus, in subsection (5) of section 185.08, Stats., it is expressly provided that, “The association may cause to be filed * * * a copy of any such contract to sell to or through the association.” Manifestly, selling “through” as distinguished from “to” the association occurs when the latter acts as agent and not as vendee. Likewise that contracts of agency are included within the scope and protection of chapter 185, Stats., is demonstrated by the fact that in subsection (8) of section 185.08, Stats. (which was added by the enactment of chapter 181, Laws of 1925), the Legislature expressly declared that the legislative intent to prevent wrongful interference with any contract between an association and its members by resorting to the judicial relief provided for by subsection (6) of section 185.08, Stats., extends to all of such contracts, “no matter whether said contract is such a contract to sell to the association or is one of agency or otherwise.” As the filing of plaintiff's agency contracts was authorized by statute, an interest in the title of the live stock of the member who signed such contracts vested in plaintiff, by reason of the provision in section 185.08 (5), Stats. that: “From and after the date of such filing the same shall constitute notice to any and all persons that an interest in the title to all property so agreed to be sold by the maker of such contract during the term of such contract is vested in the said association.”

By virtue of that provision, the marketing agency of the association is clearly coupled with a vested interest in the live stock of the members who signed the contracts upon which plaintiff relies in this action. Although that interest may not include the complete title, with all of the incidents of a complete title, it is a substantial interest, as is an agent's interest under an agency coupled with an interest at common law. See 21 R. C. L. 824, § 8; 2 C. Jur. 830, § 504, 899, § 600; Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589;Raymond v. Squire, 11 Johns. (N. Y.) 47;Terwilliger v. Ontario C. & S. R. Co., 149 N. Y. 86, 43 N. E. 432;Perkins v. Hershey, 77 Mich. 504, 43 N. W. 1021;Bird v. Phillips, 115 Iowa, 703, 87 N. W. 414;Hilliard v. Beattie, 67 N. H. 571, 39 A. 897;Bowling v. Nat. Convoy & Truck. Co., 101 Fla. 634, 135 So. 541;Supreme Assembly of Royal Soc. of Good Fellows v. Campbell, 17 R. I....