Stacy v. Bryant

• Decision Date: 04 December 1888
• Citation: 40 N.W. 632,73 Wis. 14
• Parties: STACY v. BRYANT ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 14

40 N.W. 632

STACY

v.BRYANT ET AL.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Langlade county; GEORGE H. MYERS, Judge.

Action by W. H. Stacy against M. Miller and E. Neff for supplies furnished them, and to establish the amount of the judgment recovered against them as a lien on certain logs owned by S. Bryant, R. W. Pierce, and O. H. Pierce. Judgment for plaintiff for $671.12, which was adjudged a lien on the logs mentioned, and the said Bryant and the Pierces appeal.Lynch & McCarthy, for appellants.

F. M. Guernesy, ( Gerrit T. Thorn, of counsel,) for respondent.

TAYLOR, J.

The respondent commenced his action in the circuit court against the said M. Miller and E. Neff to recover for a bill of feed, flour, butter, etc., sold by him to said Miller & Neff, about the 30th of January, 1886. The price of the goods sold, including freight paid by respondent, was $646.72; and in said action the respondent claimed a lien for the value of the goods sold, upon a lot of saw-logs owned by the appellants Bryant, Pierce & Pierce, and so the appellants were made parties to the action. The respondent claims that the goods were sold to Miller & Neff, upon the statement of Neff that he wanted the bill of goods for his lumber camp, and that he sold him the goods as supplies for that purpose. The evidence on the part of the plaintiff shows that at the time said goods were sold and delivered to said Miller & Neff they were engaged in getting out and banking the logs of the appellants, which were attached in this action. The evidence on the part of the plaintiff tends to prove that the goods were used by the men and teams in the employ of Miller & Neff, while they were at work in cutting, hauling, and banking the logs of the appellants, which were attached in this action. It is admitted by the learned counsel of the appellants that the bill of goods sold, which consisted of flour, feed, and butter, were supplies, within the meaning of sections 1, 2, c. 469, Laws 1885, and, if they were in fact used by Miller & Neff in feeding the men and teams employed by them in cutting, hauling, and banking the logs in question, and were sold by the respondent to said Miller & Neff for the purpose of being used in that way, then the respondent was entitled by law to a judgment in his favor, subjecting the said logs to the payment of said claim. The defense the appellants made upon the trial was (1) that the said Miller & Neff at the time in question were merchants dealing in the kind of merchandise sold by the respondent to them, and that the respondent sold the goods to them, not for the purpose of being used by them in getting out the logs in question, or any other logs, but to go into the store of said Miller & Neff, to be sold out at retail by them as any other goods kept by them for sale; and (2) that such goods, or the greater share of them, were sold by said Miller & Neff at retail from their store, to persons other than those then in their employ, and engaged in cutting, hauling, and banking said logs of the appellants; (3) that a large part of said bill of goods was used in boarding and paying off men in the employ of Miller & Neff, not at the time engaged at work upon the logs in question. Upon this appeal these questions of fact have been fully presented by the learned counsel for the appellants, and this court is asked to reverse the verdict of the jury on the ground that it is wholly unsupported by the evidence, or, if not wholly unsupported, that the great preponderance of the evidence is against the verdict. A motion to set aside the verdict was made by the appellants in the court below upon this ground, and denied by the trial court, and exceptions taken.

Upon a careful reading of the evidence we find that, while there is considerable direct evidence, and much circumstantial evidence, tending to establish the contention of the learned counsel for the appellants, we also find that the evidence of the respondent and that of Neff, and Rockafeller, the book-keeper of Miller & Neff, certainly sustains the verdict of the jury. It is therefore clear that the learned circuit judge was bound to submit these questions of fact in the case to the consideration of the jury, and, the jury having found in favor of the case as made by the plaintiff's evidence, and the learned circuit judge having refused to set aside the verdict as against the evidence, or as against the great preponderance of the evidence, according to well-established rules, this court ought not to reverse the judgment upon that ground.

It is further claimed that the court erred in refusing to give the following instructions asked by the appellants: “ First. If you find that the supplies were bought by Miller & Neff for the purpose of putting them in their store and retailing them at a profit to their employes generally, and to the customers of their store at a profit, and the supplies were so sold, then the plaintiff is not entitled to a...