Tufts v. Brace
| Decision Date | 02 June 1899 |
| Citation | 103 Wis. 341,79 N.W. 414 |
| Parties | TUFTS v. BRACE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county; James O'Neill, Judge.
Claim of James W. Tufts against L. A. Brace, as assignee for the benefit of creditors of Henry E. Converse, was disallowed, and Tufts appeals. Affirmed.A. H. Shoemaker, for appellant.
Wickham & Farr, for respondent.
This is an appeal from an order disallowing the plaintiff's claim against the estate of Henry E. Converse, who made a voluntary assignment for the benefit of his creditors to the defendant, Brace, December 2, 1897. The circumstances under which the alleged claim arose are to the effect: That May 10, 1897, Converse, residing at Eau Claire, signed a written order on James W. Tufts, located at Boston, Mass., for a soda-water apparatus (described), for $888 and an old soda-water apparatus then owned by Converse; and, upon bill of lading, he thereby agreed to honor a sight draft for 15 per cent., and to pay the balance in monthly sums as follows: $22, and interest at 6 per cent. until paid, from date of shipment, for each payment, and for such balance and interest to execute and deliver contract notes of like tenor and form as the one printed on the back thereof, maturing as above set forth, and “the delivery of said apparatus, etc., to be conditional upon compliance with the above terms and conditions, and said apparatus to remain the property of James W. Tufts until paid for,” and therein agreed to insure the goods for the amount of such claim,--the loss, if any, payable to James W. Tufts as his interest might appear,--and to keep the same insured until all payments should be made, and that such order was signed by Converse, and also by James W. Tufts, per T. J. Morton. That upon the back of the order and contract was indorsed the form of a note, as indicated, containing a statement to the effect that it was thereby understood and agreed by and between the purchaser and James W. Tufts that the title to the above-mentioned property did not pass to the purchaser, and that until all such notes should be paid the title to the property should remain in James W. Tufts, who should have the right, in case of nonpayment at maturity of either of such notes, without process of law to enter and retake immediate possession of the property, wherever it might be, and remove the same. That such cash payment was made and such several notes for the balance of such purchase money were executed by Converse under date of May 29, 1897, and delivered to the plaintiff; and about the same time the goods were shipped to Converse, and the old fountain, said to be of the value of about $200, delivered to the plaintiff. That June 26, 1897, such order, so signed by the respective parties, was filed in the office of the city clerk of Eau Claire. It appears: That after the defendant, as assignee, had notified the plaintiff of the assignment, the plaintiff, under date of December 23, 1897, wrote to the defendant to the effect that he had received such notice, and also a letter from his agent to the effect that Converse expected to adjust and settle up, and resume business and payments to the plaintiff; that two of the notes were overdue, but he would defer action until he heard from the defendant, and would hold Converse on the apparatus, for which he was secured by “mortgage” filed in the city clerk's office at Eau Claire. To that letter the defendant replied, under date of December 27, 1897, recognizing such mortgage so on file, and stating, in effect, that he had sold the stock and fixtures, but that the plaintiff's mortgage was not affected by the sale; that if the plaintiff desired to hold his security, and not file any claim against the estate, that would be satisfactory to him; that he could make such arrangement with Converse as he thought best, as that was a matter outside of the assignment proceedings, and something which did not concern him. That thereupon, and on or about January 1, 1898, Converse having made default in two of such payments, as mentioned, the plaintiff took possession of the soda-water apparatus, with the consent of the defendant, and removed the same to Boston, Mass. That May 6, 1898, the plaintiff filed with the clerk of the court in such assignment proceedings his verified claim for the unpaid balance of $768.04 secured by such notes. That thereupon the assignee filed objections to such claim, upon the ground, among other things, that the taking of the possession and removing the property to Boston, under the circumstances stated, was a cancellation and rescission of such sale. The court so found, and ordered that the objection to such claim so filed be, and the same was thereby, sustained, and the claim was thereby disallowed. From that order the plaintiff brings this appeal.
It is contended, upon the one side, that the written instrument in question constituted a conditional sale, to take effect only upon complete...
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Heins v. Thompson & Flieth Lumber Co.
...Stats.; Dodge v. Hopkins, 14 Wis. 686;Smith v. Armstrong, 24 Wis. 446;Brown v. Griswold et al., 109 Wis. 275, 85 N. W. 363;Tufts v. Brace, 103 Wis. 341, 79 N. W. 414. The signature of the vendor to the writing was sufficientto give it validity if the other party accepted and adopted it. Low......
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Brown v. Griswold
...in favor of such power seems to be well settled in Dodge v. Hopkins, 14 Wis. 630;Smith v. Armstrong, 24 Wis. 446; and Tufts v. Brace, 103 Wis. 341, 344, 79 N. W. 414. In this situation we are left in much doubt whether the record discloses any conclusion of fact by the trial court upon the ......
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Singer v. Millard
...possession of the property and treating it as one's own, and as if the contract had never existed, is quite another thing. Tufts v. Brace, 103 Wis. 341, 79 N. W. 414. See, also, note L. R. A. 1916A, 915. Judgment affirmed.WINSLOW, C. J., and KERWIN, J., took no ...
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