Fenelon v. Hogoboom

Lyon, J. I. In the contract for the sale of the wheat to the defendant, there was no stipulation that any credit should be given for the price. The evidence shows that a cash sale thereof was contemplated and intended by the parties. Such being the case, it was the right of the plaintiff to demand payment immediately upon the delivery of the wheat. When the agent and husband of the plaintiff delivered to the defendant the warehouse receipts for the wheat, he, by that act, delivered to him the wheat for which those receipts were given; but such delivery was subject to the plaintiff’s right to reclaim the wheat after payment therefor was refused. Whatever title passed to the defendant by virtue of such delivery, was divested by his refusal to pay for the wheat ? and, after demand for the wheat (which was made on the day of such delivery and re fusal to pay therefor), the defendant not delivering the same, the plaintiff’s right of action against him, for a conversion of [177] the wheat became perfect. These principles are held in the case of Goldsmith v. Bryant, 26 Wis., 34, which in many of its features is quite like this case. See also Mathews v. Cowan, 4 Chicago Legal News, No. 188, p. 233. II. The plaintiff did not offer to return the $40, paid on account of the purchase of the wheat, when she demanded the same, or at any other time. The fact that she retains that money certainly does not vest in the defendant a title to all of the wheat. The wheat being in its nature divisible, it gives him a good title to the number of bushels that the money paid for at the contract price, and left the plaintiff, after such demand and refusal, the owner, and entitled to the possession of the residue thereof. It is worthy of remark in this connection, that the defendant did not ask the plaintiff to repay the $40, neither did he put his refusal to deliver the wheat on the ground that she had not repaid the same, but he seems to have refused to pay for the wheat or to re-deliver the same to the plaintiff on the sole ground of her inability to surrender the warehouse receipts which he had given therefor. It is reasonable to infer from these facts that the defendant was content to take the wheat for which he had paid, instead of requiring a return of the money. III. There is no force whatever in the objection that plaintiff was unable to surrender the warehouse receipts when she demanded payment for the wheat, or when she demanded the wheat itself. She had previously delivered those receipts to the defendant, and if he suffered them to go out of his hands, either voluntarily or by his own negligence, or if they were stolen, or taken from him by force, without the fault of the plaintiff, that is the misfortune of the defendant, and cannot affect the rights of the plaintiff. IY. The judgment record which the circuit court excluded is not made a part of the bill of exceptions, and is not before us. Although the bill of exceptions states the grounds upon [178] wbicli tbe objection to its admission were based, it does not state tbe grounds upon wbicb tbe court excluded it. All reasonable presumptions must be made in favor of the correctness of tbe decision of tbe court, and we must presume that there were good and valid reasons for excluding that record, apparent upon tbe face of it. It is not necessary, therefore, to consider whether the objections taken thereto by counsel were well taken or otherwise. As the proofs stood when this record was offered, it was entirely immaterial to the case, unless followed by proof that the defendant in the attachment suit, and not the plaintiff, was the owner of the wheat. No testimony tending to prove his ownership thereof was offered, and no intimation appears to have been given on the trial that it was proposed by the defendant to introduce any such testimony. Y. The husband of the plaintiff was examined as a witness, and, after testifying that he took the wheat to the defendant’s warehouse by direction of the plaintiff, and by her direction also took the receipts therefor in her name, was interrogated by the counsel for the plaintiff, as follows: “How were the books kept? ” ■ Under objection and exception by the defendant, he answered. “ The understanding was with Hogoboom, that I was to put the wheat in under the chattel mortgage, and the entry was made in the book that the wheat was going in under the chattel mortgage.” The question and answer are supposed to relate to the defendant’s account books. Of course, it was irregular to admit parol testimony of the contents of those books, until a proper foundation had been laid therefor, which was not done. But the testimony thus improperly admitted, as the case stood and as it now stands, was not of the slightest importance. It was proved that the plaintiff owned the wheat, and that the' receipts therefor were issued to her, and testimony as to what entries of the storage transaction the defendant made in his books could not aid or injure either party to the action. Hence the terror is not sufficient to work a reversal of the judgment. [179] YI. It appears tbat, while the wheat was growing, the husband of the plaintiff, being indebted to her, gaye her a chattel mortgage on the crop, and that the same had no internal revenue stamp affixed to it as required by the laws of the United States. This mortgage was offered and read in evidence on the trial, against the objection of the defendant thereto, made upon the ground that the same was not duly stamped. It was competent for the plaintiff to take a chattel mortgage from her husband to secure a debt which he owed, and which was contracted on the account of her separate property. Beard v. Dedolph, 29 Wis., 136. In the absence of proof that the stamp was fraudulently omitted, we have held in several cases that the instrument may properly be read in evidence. Rheinstrom v. Cone, 26 Wis., 163; Grant v. The Connecticut Mutual Life Ins. Co., 29 id., 129; Timp v. Dockham, id., 440. But .the chattel mortgage does not seem to be of much importance in the case, after the property had gone into the hands of the mortgagee. Her title would seem to be equally as good, without the mortgage as with it. Upon examination of the whole case we find no error that requires us to reverse the judgment appealed from. By the Court.— The judgment of the circuit court is affirmed.