Wing v. Thompson

Tayloe, J. The learned counsel for the appellants assign several reasons why the judgment should be reversed. The first error assigned is that under all the evidence the court should have ordered judgment for the defendants. After a careful consideration of all the evidence, we think the court was right in refusing to direct a verdict for the defendants. There .was some evidence in the case which, if it stood alone, might justify a verdict for the plaintiff, and wh.eth.er lie was entitled to recover was therefore a question for the jury. The appellants assign as errors the refusal of the trial judge to instruct the jury as requested by the defendants, and also that certain instructions given to the jury were erroneous. There are two material issues in the case. The first is whether the defendants, at the time of making their contract with Eood & Maxwell, knew of the existence of the contract between plaintiff and Eood & Maxwell; and, second, if they knew such fact, then whether the plaintiff had permitted Eood & Maxwell to so deal with the logs and lumber in question as would amount to a waiver of his claim to hold the lumber in question under his contract as against these defendants. It will be seen by an examination of the contract between plaintiff and Eood & Maxwell that it was clearly the intent of the parties thereto that Eood & Maxwell should have the right, at least, to cut and remove the timber from thé lands described in the contract, and take and keep the same in their possession; and, looking at the other evidence in the case, it may be fairly inferred that said Eood & Maxwell were also to have the right, even before payment, to — 266 — manufacture tbe logs and timber into lumber at tbeir mill, and there is simply a reservation in the contract of title in the plaintiff until payment is made. It may. be premised that a contract of this kind is not favored in the law, and the right to enforce the reservations as against a tona fide purchaser without notice must be based upon evidence which shows that the plaintiff has not done anything in regard to such property while in the hands of his vendee which would amount to a waiver of his right or estop him from asserting his title against a purchaser from his vendee. It was material, therefore, for the defendants to show that they were purchasers without notice of plaintiff’s claim. The case was in fact tried upon that theory. It was claimed on the part of the plaintiff that filing the contract in the lumber inspector’s office at Ashland was notice to the defendants, and if this was not notice the filing of it in the office of the town clerk of the town of Bayfield was notice. This claim of notice was disputed by the defendants, and we think, under the decisions of this court, neither filing was legal notice to the defendants. That the filing of this contract in the town clerk’s office was not legal notice to the defendants was settled by this court in the case of Lillie v. Duntar, 62 Wis. 198, 202, and cases cited on page 202; and that the filing of this contract in the inspector’s office was not notice was settled in the cases of Cadle v. McLean, 48 Wis. 630, and Bunn v. Valley L. Co. 51 Wis. 376. Upon the subject of notice by the filings of this contract, the learned circuit judge instructed the jury as follows, after having stated that this contract had been filed in the town clerk’s office and in the lumber inspector’s office, viz.: “ That the filing of the contract in the inspector’s office was not constructive notice, or any notice, of Wing’s ownership of the logs as against other persons purchasing of Bood & Maxwell in good faith.” The judge then added: “ But you may consider that fact as a fact tending to show — 267 — that these defendants did have notice in the lumber inspector’s office, notwithstanding that it is not proof of ownership, if you find from the fact and circumstance, with other • facts and circumstances, that they were apprised of the fact that Wing claimed an interest in this lumber in controversy.” To this the defendants duly excepted. The judge then instructed the jury as follows: “What I have said in relation to the lumber inspector’s office here has nothing to do with what I stated to you in relation to a written contract having been filed with the town clerk of Bayfield, where the plaintiff and vendor of this pine lived.” This was also excepted to by the defendants. We think both these instructions were erroneous and misleading. There was no evidence showing that the defendants had in fact any notice of the filing of this contract in either the inspector’s office or in the office of the town clerk. It was clearly error, under that state of the evidence, to instruct the jury that they might consider the fact of the filing as evidence tending to show that defendants knew of the existence of such contract. The other instruction might well he understood by the jury as an instruction that the filing of the contract in the town clerk’s office was at least constructive notice to the defendants of its existence. It is true the learned judge had not, in express terms, instructed that such filing in the town clerk’s office was constructive notice to the defendants, hut he had stated that “this written-contract was filed in the office of the town clerk of Bayfield for the purpose of giving notice that the title was to be retained (among other things) in the plaintiff.” Then, after stating that it was also filed in the inspector’s office, and instructing the jury that such filing in the inspector’s office was not constructive or other notice to the defendants, he then, after instructing in the language first excepted to, proceeds to say that what he had said about filing in the inspector’s office was not to apply to the fact that the con — 268 — tract was filed in tbe town clerk’s office. It seems to us that the learned judge intended to convey to the jury the idea that the filing in the clerk’s office .was notice to the defendants; at all events the jury might have so understood him. This was clearly an error, as above stated. There was certainly considerable evidence given on the part of the defendants tending strongly to show that the plaintiff had so conducted himself in regard to these logs, after making his contract with Eood & Maxwell, as would estop, him from insisting upon the reservation in his contract as against these defendants who had purchased these logs and the lumber manufactured from them of the said Eood & Maxwell, and they were entitled to have this question fairly submitted to the jury. Upon this question, the counsel for the defendants requested the learned judge to instruct the jury as follows: “ Such a waiver or license to cut, manufacture, and sell may be proved either directly or inferentiallv from the circumstances, like any other fact. It may be proved by express declaration, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage or lien, or by a course of acts and conduct, or by so neglecting and failing to act as to induce the belief that it was his intention and purpose to waive or license. “ (4) In determining the question of waiver or license, the jury are instructed that the plaintiff’s permitting the logs to be removed from the town of Bayfield to the town of Washburn and permitting the logs to be manufactured into lumber, extending the time of payment of the last three thousand dollars, and failure to assert any claim to the logs or lumber for more than one year after the last note became due, is evidence tending to prove a waiver of lien and license, and permission to manufacture into lumber and sell.” These instructions were refused, and exceptions taken, — 269 — and npon that subject the learned judge gave the following instructions:' “ The defendants also claim that the plaintiff, if he had any claim to the lumber in controversy, had waived his claim upon the lumber. If you find it to be a fact that he actually waived his claim to the lumber, taking into consideration all the facts and circumstances in the case, all the evidence that has been introduced here by the defendants, and also the testimony of the plaintiff, Wing, himself, then! your verdict will be for defendants. (“ Tou will remember that the title of the logs which were conveyed by the contract of Eood & Maxwell on the one part, and plaintiff, Wing, on the other, was retained by Wing — that there is an express provision to that effect — until the whole purchase price should be paid. How if the logs were sawed into lumber by Eood & Maxwell, even with Wing’s knowledge and consent, still the plaintiff, Wing, under this contract, would be the lawful owner of the lumber until the whole purchase price was paid, the plaintiff’s lien having been reserved in the contract, he retaining therein the title to the logs or lumber until he was fully paid; and unless the plaintiff, Wing, afterwards released his title to the logs and lumber, he would continue to be the lawful owner of the same at the time this action was commenced, and entitled to recover the amount that was still due for the purchase price. If it was intended by this contract that Eood & Maxwell should remove the logs from the land — that is to say, by the contract entered into by Eood & Maxwell ■— and saw them into lumber at their mill, the mere fact that Wing knew of such removal and sawing and piling at their mill, and knew that they intended to seE or had sold them to be delivered on board boats, some of such lumber to the defendants, or to the Thompson c& Walkwp Go., and did not object thereto, that would not be a waiver or abandonment of his lien upon all of the logs and lumber on the docks.”) — 270 — The defendants excepted to this instruction, and the judge further instructed as follows: . . . (“ But you may consider that fact as a fact tending to show that these defendants did have notice in the lumber inspector’s office, notwithstanding that it is not proof of ownership, if you find from the fact and circumstance, with other facts and circumstances, that they were apprised of the fact that Wing claimed an interest in this lumber controversy.”) The defendants excepted to that part of these instructions included in parentheses. It is objected that these exceptions are too general, and should not be considered by this court. We think all that was said by the learned judge, in the first instruction above, was merely preliminary and leading up to what is stated at the end of the instruction, viz.: “ The mere fact that Wing knew of such removal and sawing and piling at their mill, and knew that they intended to sell or had sold them to be delivered on board boats, some of such lumber to the defendants, and did not object thereto, that would not be a waiver or abandonment of his lien upon all the logs and lumber on the docks.” Whether the facts stated in this instruction would be a waiver of the plaintiff’s claim of title to the logs in question was, we think, a question of fact for the jury to determine, and not of law for the court, and was therefore erroneous. The facts proved on the trial clearly tended to establish the claim of waiver and estoppel, as insisted by the defendants, and the court should have submitted the question to the. jury, without stating that as a matter of law those things did not amount to a waiver. That courts universally hold that the matters claimed to have been proved by the defendants in this case are competent evidence upon the subject of a waiver of the rights of the plaintiff reserved in his contract with Kood & Maxwell will be seen by an examination of the following cases, as well as of many others which might be cited: Peabody v. — 271 — Maguire, 79 Me. 572; Winchester W. W. Mfg. Co. v. Carman, 109 Ind. 31; Benj. Sales (3d Am. ed.), § 19, pp. 18, 19, and cases cited in notes. For tbe errors above mentioned in instructing tbe jury^ tbe judgment must be reversed. By the Court.-— Tbe judgment is reversed, and tbe cause is remanded for a new trial.