Buren v. Stubbings

Grant, J. (after stating the facts). 1. Mr. Stub- bings was the owner of the property, the subject of the contract of sale. That contract expressly provided that the title should remain in him until the purchase price was paid, and that the lumber should not be removed from the place of manufacture until that price was paid. The books do not furnish a clearer case of conditional sale. We might cite many authorities from this and other courts, but the late'case of Bunday v. Machine Co., 143 Mich. 10 (5 L. R. A. [N. S.] 475), is sufficient. Plain [211] tiffs’ contract with Hoxie & Mellor expressly stated that Hoxie & Mellor’s sole title was derived from, and evidenced by, a contract between Stubbings and Hutchinson and assigned by Hutchinson to Hoxie & Mellor. No other notice of the terms of that contract was necessary. Town v. Gensch, 101 Wis. 445; Dwight v. Tyler, 49 Mich. 614. Plaintiffs took no steps to ascertain what that title was until Hoxie & Mellor had failed. Evidently they did not deem it essential for their interests to do so, as they regarded Hoxie & Mellor entirely responsible. Mr. Stubbings took prompt steps to assert his rights. His right of recovery can only be defeated by a waiver on which the plaintiffs acted to their injury. This waiver depended mainly upon the testimony of one of the plaintiffs and Mr. Stubbings. The jury have settled that disputed question of. fact in favor of the defendants. The Union Trust Company is the assignee of Mr. Stubbings, and the court very properly instructed the jury that the other defendants were nominal defendants, and that their verdict, if for defendants, would be in favor of Stubbings’ assignee, the Union Trust Company. There was no question of fact to be left to the jury upon this point. If any other parties have interests in the estate of Mr. Stubbings, this suit is not the proper proceeding in which, to assert them. The other errors assigned relate to the admission and rejection of testimony. 2. Plaintiffs offered in evidence the record of the proceedings had in the circuit court for Langlade county, Wis., in the matter of the assignment of Hoxie & Mellor, assignors, Lyman E. Brown, assignee. That record consisted of a petition filed by Mr. Stubbings asking that the assignee of Hoxie & Mellor be directed to pay him the value of the lumber which was manufactured at the Antigo mill, taken possession of and disposed of by the assignee, an amended petition, answers of the different parties interested, testimony taken by the referee, and the final orders or decrees of settlement. That claim was finally settled by stipulation for $12,000, paid by the Wis [212] consin assignee to the assignee of Mr. Stubbings, and 12,000 to Mr. Stubbings for expenses, etc. .These proceedings were at first admitted in evidence, but, on motion of defendants, were finally stricken from the record and excluded from the consideration of the jury. The claim is that that settlement settled all Mr. Stubbings’ ' claims for this lumber, as well that in Michigan as that in Wisconsin. That settlement was ratified by the court, and was declared’in the order “to be in full satisfaction, payment, and discharge of any and all liability of or claim against the estate of said assignee thereof by or in favor of the plaintiff, Wilson H. Stubbings, or any person or persons, corporation or corporations, claiming through or under him, and said assignee shall take proper receipts therefor. ” The money was paid, the proper receipts given, and the plaintiffs in this case credited with it by the direction of the court below at the request of the plaintiffs. The assignee of Hoxie & Mellor in Wisconsin had no interest in, or control over, the lumber in Michigan. That was in the exclusive control of Mr. Stubbings until it was replevined by the plaintiffs. The decree or order in Wisconsin related solely to the lumber situated at Antigo. The claim is that there was an understanding that Mr. Stubbings should prosecute the Appleton suit until he had exhausted his remedy against the lumber in Wisconsin, and that the plaintiffs should furnish the money to conduct that litigation, and that a settlement was made without notifying them. It is, perhaps, a sufficient answer to plaintiffs’ contention to say that there is no showing that a continuance of that expensive litigation would have resulted in a larger amount than was received. However that may be, it is apparent that this Wisconsin litigation was earned on mainly in the interest of the plaintiffs. We think it also evident that their attorneys had cognizance of the proceedings in the Wisconsin court. But, whether they had any knowledge of the proposed action of the court, it is certain that upon ascertaining it they took no direct steps to have the order vacated, which [213] they might have done, as they were the principal parties interested. Instead, they seek by a technicality to impose the entire loss upon Mr. Stubbings and his assignee. Mr. Stubbings had shown no intention to abandon his title to the property in Michigan. He and his assignee acted in good faith in instituting and in settling the suit brought in "Wisconsin. That settlement was ratified by the court. We are therefore of the opinion that the settlement of the Wisconsin suit did not settle the suit in Michigan, and did not operate to convey the title to the Michigan lumber to the plaintiffs. It would unnecessarily lengthen this opinion to enter info a,detailed statement of the facts in regard to the Wisconsin litigation, which covers more than 100 pages of the record. We think the proceedings in that suit were properly excluded from the consideration of the jury. The other questions raised during the progress of the trial are not of sufficient importance to discuss. We find no reversible error in the rulings of the court. This was a long and hotly-contested litigation. The case was carefully tried, and was fairly submitted to the jury without any substantial error during the entire trial, and the judgment is affirmed. ' Blair, Montgomery, Hooker, and Moore, JJ., concurred.