Taylor v. Tigerton Lumber Co.

• Decision Date: 13 December 1907
• Parties: TAYLOR ET AL. v. TIGERTON LUMBER CO.
• Court: Wisconsin Supreme Court

134 Wis. 24

114 N.W. 122

TAYLOR ET AL.

v.TIGERTON LUMBER CO.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by E. M. Taylor and others against the Tigerton Lumber Company. Judgment for plaintiffs. Defendant appeals. Reversed and remanded for new trial.

Action for conversion of certain logs. In and prior to the year 1904, the plaintiffs had been merchants dealing in supplies for lumbering, had transactions with a firm of Peters & McNinch, who owned a sawmill, and were also engaged in general lumbering, selling them supplies and buying logs of them, of which some remnants remained in the mill yard at the times here involved. In November, 1904, George McNinch, one of the firm, was engaged in getting out logs on his own homestead, and applied to the plaintiffs to supply him or the firm a car load of feed for those logs. One of the plaintiffs went to the locality and saw the logs, some if not all of which were still in the woods, although some may have been hauled to the mill yard, and, as plaintiffs claim, the parties then agreed that for that particular batch of logs they would give McNinch a car load of mixed feed. Accordingly, such a car load was sent to him and was used by the firm of Peters & McNinch. The logs were from time to time hauled to the mill yard of that firm by George McNinch. In December, 1904, the firm of Peters & McNinch entered into an agreement with the defendant to take their entire season's cut of logs, and apparently certain advances were made thereon at the time of such agreement, and later. On January 11th, the defendant sent a man, and Peters & McNinch then pointed out to him the logs which would go to the defendant under that agreement, and a bill of sale was made reciting the former agreement and conveying to the defendant “all of their entire stock of whitepine, Norway pine, and other saw logs and timber cut and put into said first party's sawmill during the logging season of 1904-05.” Defendant claims that at this time both Peters and McNinch pointed out the logs which they would receive, and that they included those which had been cut by George McNinch on his homestead. It also claims, at that time, to have put a crayon mark on certain logs in each pile to indicate ownership. Later, in March or April, plaintiffs caused the logs which they claimed, including the George McNinch logs, to be marked with their stamp. Thereupon some question arose between them and the defendant, who asserted title to certain logs which are not made very definite, but included those from George McNinch, and thereafter the defendant caused to be placed upon such logs its own stamp and notified plaintiffs not to take them, threatening that, if they did so, it would bring suit against them. Accordingly, some time in the spring of 1906, the plaintiffs brought this action charging conversion of the logs. There is considerable indefiniteness in the evidence as to whether any part of them had been hauled away by defendant at the time of the commencement of the suit, although all had been before the trial. There is also confusion and conflict in the evidence as to whether the defendant thus asserted ownership over and finally took away logs other than the George McNinch logs, and great dispute in the evidence as to the value. The jury returned a verdict in favor of the plaintiffs, assessing their damages at $446.25. Judgment was entered for the plaintiffs in accordance with the verdict, from which the defendant appeals.Goodrick & Goodrick, for appellant.

H. J. Severson (McFarland & Murat, of counsel), for respondents.

DODGE, J. (after stating the facts as above).

The trial of this case, as also the record in this court, is very confused and complicated. The errors assigned are 47 in number, and go to multitudinous details of the trial. The situation would perhaps be simplified by a brief statement of the issues as we extract them from this record. Those issues are: First, did the plaintiffs purchase of George McNinch, for agreed price, namely, a car load of feed, certain ascertained logs cut by him on his own land, or did they sell that car load of feed upon the credit of Peters & McNinch? Second, if there was such purchase of the logs, was there a delivery sufficient as between the parties to transfer title? Third, was there a conversion of logs by the defendant? And, fourth, the value of plaintiffs' logs taken by the defendant. We do not discover any question of actual fraud if the first issue be resolved in favor of the plaintiffs' theory of a sale. There is no showing of insolvency on the part of George McNinch, or even of the firm of Peters & McNinch. If a sale was made at all, it was made for a presently paid consideration, the adequacy of which is not questioned, and there is no showing that at that time there was any contemplation of sale of the logs to the defendant, or any one else. Hence the second issue is as above stated, and does not involve either the publicity of delivery or continuance of possession, absence of which by section 2310, St. 1898, is made presumptive evidence of fraud. Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758;Brewing Co. v. Lockery (decided herewith) 114 N. W. 120. Any such presumption is overcome beyond dispute. There was certainly some evidence on each of these issues sufficient to go to the jury. We therefore turn to such of the assignments of error as seem to require consideration.

1. A large number of questions were propounded to plaintiffs on cross-examination, and to Peters & McNinch, tending to show that in subsequent dealings between those parties one or other of the plaintiffs treated the price of the car load of feed as a charge against and indebtedness of Peters...