Thielen v. Rath

• Decision Date: 20 October 1891
• Parties: THIELEN v. RATH.
• Court: Wisconsin Supreme Court

80 Wis. 263

50 N.W. 183

THIELEN

v.RATH.

Supreme Court of Wisconsin.

Oct. 20, 1891.

Appeal from circuit court, Clark county; ALFRED W. NEWMAN, Judge.

Action of replevin by Henry Thielen against John Rath. From a judgment in plaintiff's favor, directed by the court, defendant appeals. Reversed.

STATEMENT BY THE COURT. Replevin to recover possession of 4,434 half-barrel staves, 822 pieces of half-barrel heading, and 2,869 quarter-barrel staves, taken and detained by defendant in two freight-cars at the railroad depot in Greenwood, Clark county. Both parties claimed the title to the disputed property by purchase from Stafford Bros., who made the staves. They had been made during the winter of 1890-91, and hauled to the depot grounds, and there piled. Plaintiff proved that he purchased them of the Staffords March 14, 1891, and that he commenced loading them at once on cars. The defendant stopped him from further loading on the 24th of March, and the station agent forbade shipment; hence the plaintiff brought replevin. Defendant proved that he made a written contract with the Staffords November 1, 1890, for the manufacture and delivery of 100,000 staves, the material facts of which are as follows: “Witnesseth, the said party of the first part, for the consideration hereinafter mentioned, has agreed and does hereby covenant, promise, and agree to make and deliver at the depot at Greenwood, Clark county, or at the next nearest depot in said county, one hundred thousand hardwood staves of the following dimensions: About thirty thousand whole-barrel staves, 32 inches long, average 5 inches wide, 1 3/4 inches thick; whole-barrel heading, 19 inches long, 10 inches wide, 1 1/2 inches thick; thirty thousand half-barrel staves, 20 inches long, 1 1/2 inches thick, average 4 1/2 inches wide; heading, 15 inches long, 8 inches wide, 1 1/4 inches thick: one-fourth barrel, 22 inches long, 1 1/4 inches thick, average 4 inches wide; doubleeighths, 34 inches long, 1 1/4 inches thick, average 4 inches wide. The said party of the second part, in consideration thereof, agrees to pay said parties of the first part the following sums per thousand when said staves are delivered and accepted on board of cars: Twenty-seven dollars per thousand for the whole-barrel staves and heading, twenty-one dollars per thousand for half-barrel staves with heading, sixteen dollars per thousand for quarter barrel, twenty-one dollars per thousand for double-eighths,--to be paid as follows: Six dollars per thousand at the ensealing and delivery of these presents, and seven dollars per thousand as the staves are made, and five hundred dollars when said staves are delivered at the depot; the balance of the amount to be paid when said staves are loaded on board of cars; said staves to be made from white oak timber.” There was evidence tending to show that Rath was at Staffords' camp in January, 1891, and that one of the Staffords suggested that they would get 125,000 staves off from the land on which they were cutting, and perhaps more, and that Rath said: “The more the better. We will pay the same for whatever you cut off this land, whatever the contract says;” to which Stafford replied: “That was all right, and they would do it.” The evidence also tended to...