Pratt v. Peck

Cassoday, J. The parties substantially agreed in several particulars, and in a few they radically differ. It is admitted that August 9, 1883, the defendants agreed to1 purchase of the plaintiff 1,000,000 feet of lumber, of wfhich 600,000 feet was dry and then in piles in the plaintiff’s mill-yard, and that the balance of 400,000 feet was to be the first thereafter sawed by the plaintiff, and to be piled in the plaintiff’s mill-yard, and there remain until dry in the spring. It is agreed that all the lumber was to be of the several dimensions, kinds, and qualities named, and that the defendants were to pay therefor the several prices stated, and that the grades were to govern the prices. It is agreed that the defendants were to pay for all the dry lumber in the yard, at the time of making the contract, as of September 1,1883, and that they did; and for the green lumber in ninety days after it should be sawed. It is agreed that the plaintiff was to haul all the lumber to the factory of the defendants, as required by them, but in lots not less than 10,000 feet in a day. It is admitted that the plaintiff commenced hauling the dry lumber to the factory of the defendants, and con [470] tinued doing so until tbeir factory burned, October 4,1883; and that in doing so each load was graded by the plaintiff’s foreman as it was loaded upon the wagon; and that a bill of each such load was made out, and sent with the load to the defendants; and that at night the plaintiff’s book-keeper would send to the defendants a statement or bill of what had been hauled to them during the day, and that then he charged the defendants the amount of those bills each day, as it was hauled to them; and that, after the defendants’ factory burned, the same was process was continued as to the dry lumber hauled by the plaintiff to Gould’s mill, to whom the defendants sold it. It is admitted that September 1, 1883, the defendants paid the plaintiff, on the dry lumber, $10,000 cash, and adjusted the balance, and that on the same day they got the dry lumber insured in their own names. It is claimed by the defendants that the plaintiff did not commence hauling to their factory until a day or two before September 1, 1883; that September 1, 1883, they and the plaintiff inspected the piles of dry lumber; and that the plaintiff formally delivered the same to them, and that they accepted the same, and then put their name upon the piles, and then paid the money and obtained the insurance, as stated. The time when the hauling was commenced, and of the inspection and marking by the defendants, is denied by the plaintiff, who claims that it was the nest day after the contract was made, and in pursuance of it. He also claims that by the agreement he was to pile the green lumber in his yard at a place designated by the defendants, and, when so piled, mark the same with their name. This is denied by the defendants, who insist that they were only to accept the green lumber as theirs when the same should be- delivered to them by the plaintiff as agreed, and that, in making the contract of purchase, nothing was said as to who should have the title to the lumber, nor where it should [471] be piled, except that they requested the plaintiff to pile it open, so that it would dry quick. Manifestly, the contract when made, August 9, 1883, was entirely executory in its nature,— certainly it was as to the 400,000 feet thereafter to be manufactured. The contract being thus purely executory, it is evident that the title would not pass to the defendants until the 400,000 feet should be actually delivered, as required by the contract actually made, or until the defendants should accept of the same as their property. There is nothing in the numerous questions submitted to the jury, covering either of these issues, unless it be by mere inference. Some of the questions submitted were undisputed, and hence not material issues of fact for the jury, within the meaning of the statutes. Some were exceedingly remote, and it may be doubtful whether they had any bearing upon either of those issues. Several were mere items of evidence tending, more or less remotely, to prove or disprove one or the other of the questions above suggested but not submitted. Some 'of them consisted of mere admissions or non-admissions of the parties, or one of them. “ In the trial of cases, many questions are put to the witnesses which are material, because the answers may tend to prove or disprove some issuable fact; but it does not follow that every question so put to a witness is in itself a material issue of fact, and to submit each such question to a jury, by way of special verdict, would in many cases elicit from them nothing more than an abstract of the evidence.” Eberhardt v. Sanger, 51 Wis. 76. Here a large portion of the special verdict is a mere abstract of evidence; and it is a very partial abstract at that, leaving several disputed facts, bearing more or less remotely upon the questions suggested, undetermined. Every special verdict should, at least, submit to the jury every controverted issuable fact. 51 Wis. 77; Hoppe v. C., M. & St. P. R. Co. 61 Wis. 358; [472] McLimans v. Lancaster, 63 Wis. 604. True, the form of a special verdict is largely in the discretion of the trial court, but the questions submitted should cover all the controverted issues of fact; otherwise there must necessarily be a failure to determine such issues, and the result must be a mistrial. Such, we think, was the result here. It was suggested on the argument that the questions of delivery and acceptance each involved a conclusion of law, ■and hence were improper to be submitted to the jury. They do not, however, seem to be as objectionable in that respect as questions 3, 4, and 9, which were submitted to the jury. As to what constitutes acceptance or delivery so as to pass title under such executory contract the authorities cited by counsel- sufficiently indicate, but need not be considered here. Frequently, much depends upon the terms of the contract actually made. Whenever the delivery or acceptance is into the actual possession óf the vendee the question would seem to be substantially one of fact. Where the delivery or acceptance is merely constructive or symbolical, it may depend very much upon the intention of the parties as expressed in the contract or by what they subsequently say and do. Assuming that it may be a mixed question of fact and law, still the question of fact involved in each should be submitted to the jury in some form, and the verdict is necessarily defective without such submission. If submitted in a general way, they should be accompanied by proper instructions, so that,the jury may intelligently pass upon the facts embodied in them. We give no intimation as to the form of the questions which should be submitted to the jury, except so far as necessary to indicate the defective character of the special verdict in question. As indicated above, the form of the verdict is largely within the discretion of the trial court. By the Oowrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.