Wheeler & Wilson Manuf'g Co. v. Teetzlaff

• Decision Date: 18 October 1881
• Citation: 53 Wis. 211,10 N.W. 155
• Court: Wisconsin Supreme Court
• Parties: WHEELER & WILSON MANUF'G CO. v. TEETZLAFF.

53 Wis. 211

10 N.W. 155

WHEELER & WILSON MANUF'G CO.

v.TEETZLAFF.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from county court, Milwaukee county.

T. W. Saunders, for appellant.

Rogers & Herdegan, for respondent.

TAYLOR, J.

This is an action of replevin commenced in a justice's court to recover the possession of a sewing machine. An appeal was taken from the judgment rendered in the justice's court to the county court of Milwaukee county, and in that court the action was tried, and a judgment of nonsuit rendered against the plaintiff. The appellant was, previous to August 15, 1879, the owner or the machine, and on that day sold it to the respondent upon the following written contract:

“WHEELER & WILSON MANUFACTURING Co.,

155 State street, Chicago, Ill.

+--------------------------------------+
                ¦$45.¦MILWAUKEE, WIS., August 15, 1879.¦
                +--------------------------------------+
                

Received of the Wheeler & Wilson Manufacturiug Company, one Wheeler & Wilson sewing machine, style No. 8, E, plate 43,068, with its parts as follows: 1 hemmer, 1 dozen needles, 1 quilting gauge, 1 plate gauge, 5 glasses, 4 bobbins, 1 puffer, 1 tucker, 1 set hemmer, 1 steel wrench, 1 emery wheel, 1 black wrench, 1 oil can, 1 screw-driver, 1 thumb-screw, 2 throat plates, under a bargain for the sale to me thereof, on condition that I first pay the price thereof, $45, to their order as follows: Five dollars in advance this day, and five dollars on the fifteenth day of each and every month following August 15, 1879. Payable at the office of the Wheeler & Wilson Manufacturing Company, 155 State street, Chicago, Illinois.

Said Wheeler & Wilson Manufacturing Company neither part with, nor do I acquire any title or ownership in said machine until the full sum of $45 shall have been paid as above recited.

In case I remove the machine from my place of residence at Rolling Mill, near corner of Chicago road, without the written consent of said Wheeler & Wilson Manufacturing Company, or attempt to sell it, or in default of any of the payments thereon as above, or before the payments became due, if they have reasonable cause to fear for the safety of their property, they are at liberty to take away the machine at their option, and any payment which may have been made thereon previous to such forfeiture they may retain as liquidated damages.

As long as the machine remains in my custody, I agree to take good care to prevent any damage thereto other than ordinary wear.

No one is authorized to make any contract or verbal promise differing from that written or printed on the face of this lease.

LUDWIG TEETZLAFF.”

It was admitted on the trial that the respondent had made all the payments on the contract except the last five dollars, and as to that five dollars he claimed it was not due to the plaintiff, and that by the terms of the real contract made for the purchase of the machine he was to pay but $40, and that he was ignorant of the fact that $45 had been inserted in the contract as the purchase price. This suit was not commenced until the eighteenth day of November, 1880, seven months after the last payment became due according to the terms of the contract.

Upon the trial the appellant proved the ownership of the machine by the company before the sale to the respondent, the sale to him as stated in the contract above set forth, the payment of $40 of the purchase money, a demand for the payment of the five dollars claimed to be due on the contract of Mrs. Teetzlaff, and a refusal by her to pay. The proof as to the demand of the machine before suit brought is as follows: The witness Odenbrecht, who was in the employ of the company and authorized to collect the money on the contract, testified that shortly before the action was commenced he was at defendant's house and demanded the five dollars of Mrs. Teetzlaff, and she refused to pay it, and said she would not pay any more. I told her she must pay it; we would make her. Another time I told her I would take the machineaway if she did not pay, and another time I demanded the money and did not get it, and I then took the head of the machine and carried it away to the office of the company. The appellant was not present at either of the times spoken of by this witness. The witness Evans testified “that the head of the machine was delivered to him by the company, and he was directed to go down and deliver up the head of the machine; that he carried it down and placed it on the stand and told her (defendant's wife) I had brought back the machine, and she went and opened the frame of the sewing machine and I placed it in there. I then asked her for the balance due and she would not pay it. I then told her she would have to let me have the machine, and she said, ‘No, no; she had paid for it,--paid $40 for it.’ She backed up and took hold of the machine and said: ‘ Wait until my husband comes.’ I then took a warrant of replevin in behalf of the company, which I had in my pocket, and gave it to Constable Green, and Green took the machine. I never saw Mr. Teetzlaff in regard to the machine.”

The return of the head of the machine to Mrs. Teetzlaff and the demand for payment of the five dollars claimed to be unpaid, and the demand of the machine when payment was refused, as sworn to by the witness Evans, was all subsequent to the making of the affidavit for the warrant, and the signing and delivery thereof by the justice to the agent of the plaintiff. Upon this evidence the county court nonsuited the appellant and plaintiff, and judgment was entered against the appellant for the costs of the action, from which judgment this appeal is taken. It seems from the record that the nonsuit was placed upon two grounds: First, that at the time the suit was commenced the most valuable part of the property was in the actual possession of the plaintiff; and, second, that no demand was made upon the defendant and respondent for a surrender of the property before the suit was commenced. Upon the argument in the court the learned counsel for the appellant contended that no demand was necessary to enable the company to maintain the action of replevin for the machine, because he says the respondent puts his defence upon his ownership of the machine, and denies the ownership of the appellant. There is no evidence in the case, so far as we are able to discover, that the respondent ever made any claim of ownership of the property. There is evidence that his wife made such claim before the action was brought, but it does not appear that such claim was made in the presence of the husband or by his direction, and we do not think the claim of the wife should have the effect, in a case of this kind, to charge the respondent with a wrongful conversion of the appellant's property, without full proof that she was authorized to speak and act for him. There is no direct evidence, and no circumstances disclosed, which would tend to prove such authority, except the fact that she paid the purchase money when called upon, except the last payment.

Under the contract the possession of the machine was rightfully in the respondent, and a mere failure to make the payments according to the agreement did not render such possession unlawful. The appellants might, if they saw fit, choose to let the possession remain with the respondent and sue him upon the contract for the paymeut of the purchase price. The contract says the appellant may, at its option, take the machine away if the payments are not made according to the terms of the contract. A fair construction of this contract would require the appellant to give notice to the respondent that it would exercise its option to take away the machine, on account of the nonpayment of the purchase money, before an action could be commenced to get possession thereof. A demand of...