Floodwood Mercantile Co. v. Magie

PER CURIAM. Action to recover the value of 22 double cords of pulpwood, alleged to have been unlawfully levied upon and sold by the defendant, as sheriff of [555] St. Louis county. The cause was tried to the court, findings of fact were made, and an order filed for judgment in favor of plaintiff. From an order denying his motion for amended findings and in case that 'be denied then for a new trial, defendant appeals. The court found as facts that on February 18, 1920, the defendant as sheriff levied upon and took the wood under a process directed against the property of one Isaac Mettala, and sold the same under execution; that at that time plaintiff was t'he owner and entitled to the possession thereof, and Mettala had no right, title or interest therein; that prior to .the commencement of this action plaintiff served upon defendant an affidavit of ownership and demanded possession of the property in due form; and that as a matter of law the levy and seizure was unlawful and constituted a conversion of tthe wood taken, to the plaintiff’s damage in the sum of $354.12, and ordered judgment accordingly. It appears from the record that in November, 1919, Mettala entered into a contract with the plaintiff, wherein be agreed to sell and deliver to plaintiff 50 cords oif spruce pulpwood on cars at Meadowlands on or before April 1, 1920, the same to be cut from live, sound timber on his lands. Later the place of delivery was changed by agreement to Salo’s landing. The wood was cut, hauled and piled on the railroad right or way at Salons landing, where it was to be inspected and sorted by plaintiff, then loaded on cars by the seller. It was a sale of personal property which was unascertainable at the time of the making of t’he contract. The plaintiff advanced provisions to Mettala and 'had paid for the labor of cutting t'he wood. The court found that the wood was appropriated to the contract when it was piled at the landing; that such was the intent of the parties to the contract; that the purchaser had t'he right, under the circumstances, to then inspect and sort the wood and to require the seller to load it on cars, and that, under the provisions of chapter 465, p. 767, Laws of 1917, the title passed when the property was definitely ascertained. Lieb Packing Co. v. Trooke, 136 Minn. 345, 162 N. W. 499; Bundy v. Meyer, 148 Minn. 253, 181 N. W. 345. From a careful consideration of the entire record we think the trial court was justified in its findings of fact and correct as to its conclusions of law, and that the order appealed from should be affirmed. It is so ordered.