Smith v. Wisconsin Investment Co.

Baedeew, J. A preliminary question arises over tKe sufficiency of the complaint. It is alleged that plaintiffs are the owners and lawfully entitled to the possession of the property described, stating its nature; that defendant wrongfully took possession of and unlawfully detained the same, to plaintiffs' damage. Then follows an allegation of demand and refusal to deliver possession. The criticism is that it is not alleged that plaintiffs are entitled to the immediate possession of the property. It is true that there may be instances when the general property may be in one person and the right to immediate possession in another. But when the complaint states that the plaintiff is the owner and entitled to the possession, and that defendant has wrongfully taken and unlawfully detains the property in question, there is no room for any inference of divided ownership and right to possession. See Oleson v. Merrill, 20 Wis. 462, which sustains a complaint much less definite in allegation than the one under consideration. It is not unreasonable to assume that where one says that he is the owner of property and entitled to the possession of the same, he is entitled to the immediate possession. Any inference that might arise as to the defendant’s right of possession is negatived by the allegations of wrongful talcing and detention. The statute of Kansas, and probably of other states, requires that the plaintiff shall state that he is entitled to the “immediate possession” of the property sought. Paul v. Hodges, 26 Kan. 225. No such provision is in our statute, that we are aware of. The only question submitted to the jury in this case was as to the value of the property in controversy. The trial court determined the disputed question of title to the lumber in favor of plaintiffs. This can only he justified on the theory [156] that tbe title passed under the contract set out in the statement. The question of when title passes under contracts of sale is one not always easy of solution. Very much depends upon the wording of the contract, situation of the property, and the intention of the parties. The chief difficulty in this case arises in the attempt of the parties to adopt the terms of the Connor & Krause contract as their c'ontract. The evidence shows that the situation of the vendors in the two contracts was quite different. Under the Connor & Krause contract the vendees were to assist the vendors by indorse-ments for the purpose of purchasing logs. Under the contract in suit no such project was in mind. Wicks already had his logs purchased, and the greater portion of them had been delivered at the mill when the contract was made. There were other points of dissimilarity in the situation of the parties not important in this litigation. The plaintiffs argue that the contract has a twofold aspect, either of which will sustain the position of the trial court. In the first place, they claim that the contract shows an executed sale of the lumber, the title to which became vested in plaintiffs before this action was commenced. No such conclusion is warranted by the literal terms of the contract. The lumber was not in existence at the time the contract was made. It was to be sawed during the ensuing sawing season. It was to be piled at the sawmill, a mile and a half from place of delivery. It was to be delivered on board cars, and to bo graded, scaled, and accepted when loaded on cars, and the value was to be credited on indorsements at the end of each month upon the basis of the inspection made when loaded. Wicks was to hold the lumber free from liens and to pay taxes on the same. Plaintiffs were to assist Wicks in securing money by indorsements, and the title and right of possession was to vest in them as security. Plaintiffs were to insure the lumber, and charge the cost to Wicks. In case the lumber was not all shipped out before the end of the year [157] 1900, the plaintiffs were to scale and accept the stock, less the cost of loading on cars, or make an approximate estimate if it could he agreed upon, and make final settlement. It is perfectly evident that title did not pass at the date of the contract. The whole theory of the contract is inconsistent with that idea. The fact that plaintiffs were to have title and possession as security for indorsements is wholly unreconcilahle with the idea that absolute title had become vested in them. A party does not usually take security on his own property. But stronger than this is the fact that the contract plainly contemplates the sealing, grading, delivery, and acceptance of the lumber by plaintiffs before the title should pass. The lumber was to be up to a specified grade, and to contain not to exceed twenty-five per cent, of shipping culls. That grade and the quantity of culls could only be determined by inspection, and all culls exceeding the limit specified were to be rejected and remain the property of Wicks. On the face of the contract, therefore, we say no title to the lumber passed until it was delivered, passed upon, and accepted by the plaintiffs. We are strengthened in this conclusion by the acts of the parties. Wicks treated the lumber as his own by insuring it and mortgaging it to other parties. Plaintiffs, instead of indorsing for Wicks, as contemplated by the contract, on March 24th gave him a check for $2,000, and charged it to him on their books. On' its face this would look like an advance on the sale price of the lumber. But the fact appears that at the same time they took his note for the amount of the check, bearing interest^ and later discounted it at the bank, where it was, unpaid, at the time of the trial. In one aspect the transaction was a payment on the lumber, and in another a mere loan. Plaintiffs’ agent who conducted the transaction considered it an advancement, and under that theory the other aspect of the transaction advanced by plaintiffs — that the contract may be construed to be a mortgage — falls to the [158] ground. Plaintiffs have not brought themselves within the clause of the contract which would give them a lien on the lumber for indorsements. The lumber was not piled and marked as contemplated in the contract in case indorsements were made. Plaintiffs did not insure the lumber as they were empowered to do under certain contingencies. They made m> indorsements and assumed no liability to others on behalf of Wicks. The transaction mentioned is clearly not within the terms of the agreement. The contract fails to make any provision for a lien for advancements or for loans, and, none having been created by the act or agreement of the parties, the plaintiffs’ claim of a mortgage interest is entirely without foundation. Whatever view we take of the situation, we are unable to find any solid ground to support the court’s conclusion. There was no delivery of the lumber after it was sold. The attempt of plaintiffs to take possession during Wicks’s absence did not help their claim. They got no title by committing a trespass. They must stand upon their contract as the basis of their rights. Had there been a voluntary delivery of the lumber by Wicks to them, then the validity of defendant’s mortgage might come in question. But, not having shown any title or right to possession in themselves, the plaintiffs cannot maintain this action, whether defendant has or has not title. The principles of law applicable to the situation here presented have been considered in cases too numerous to be cited. The question whether a sale is completed or only executory, when no question arises under the statute of frauds and the rights of creditors do not intervene, is one to be determined from the intent of the parties as- gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale. “When the goods sold are sufficiently designated so that no question can arise as to the thing intended, it is not abso [159] lutely essential there should-be a delivery, or that the goods .should be in a deliverable condition, or that the quantity or quality, when the price depends upon either or both, should be determined. These are circumstances indicating intent, but are not conclusive.” Lingham v. Eggleston, 27 Mich. 324. But when anything is to be done by the vendor, or by mutual concurrence of both parties, for ascertaining the price •of the goods, — as by weighing, testing, or measuring them,— •or, the goods and the price being ascertained, there is something to indicate an intention to postpone the transference of the property till the fulfilment of any specified conditions, the performance of these conditions is presumed to be a •condition precedent to a transfer of the property. These •conditions may be weighing, measuring, testing, inspecting, •delivery, acceptance, or any other deemed necessary by the parties to the identification and severance of the thing sold. •One of the tests of'the question of title is who should bear the loss in case the property were destroyed. A few of the many cases where the question here involved has been under discussion are here cited: Sanborn v. Hunt, 10 Wis. 436; Galloway v. Week, 54 Wis. 604, 12 N. W. 10; Pike v. Vaughn, 39 Wis. 499; Thomas v. Tolford, 70 Wis. 155, 35 N. W. 293; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223. We do not think the transaction in this case amounted to a completed sale, or was attended by any such legal consequence. By the Oourt. — The judgment is reversed, and the cause is remanded for a new trial.