Allen v. City of Greenwood

KeewiN, J. Tbe facts in tbis case are substantially undisputed. It was stipulated on tbe trial tbat $35 taxes were collected from plaintiff by tbe city treasurer of defendant city and paid into tbe city treasury, tbe same being taxes levied upon merchants’ and manufacturers’ stock, namely, oak staves. It was also stipulated tbat, so far as plaintiff’s assessments and property were concerned, no evidence was taken by tbe board of review. It further appears tbat tbe staves in question were assessed at $2,130.85, and upon tbe personal property statement signed by tbe assessor appeared an indorsement purporting to be made by tbe board of review changing tbe assessed valuation to $2,222.18. Tbe evidence shows tbat no other records could be found in tbe office of tbe city clerk relating to tbis assessment, except tbe tax roll, from which it appeared tbat personal property consisting of oak staves was assessed against plaintiff, valued by tbe board,of review at $2,222.18, against which taxes were assessed and carried out in tbe sum of $33.33. It was also conceded tbat tbe tax roll was duly in tbe bands of tbe city treasurer when be collected tbe tax from plaintiff. Tbe plaintiff was a resident of tbe village of Loyal, and not a resident of tbe defendant city. Tbe record further shows tbat plaintiff was a dealer in staves and shipped them from railway stations directly to consumers, one of tbe stations being tbe city of Greenivood, defendant; tbat during tbe winter of 1901 and 1905 appellant bought staves from various parties which were landed at tbe railway station in tbe defendant city. Tbe appellant was assessed for tbe staves be bad piled at tbe station in tbe defendant city on May 1, 1905, being staves bought during 1904 and 1905 from three parties, namely, Ericke & Rossman, E. J. Blecka, and William Huntzicker, except one carload of about 8,000 shipped out in April, 1905. Tbe amount paid for tbe staves at tbe station on May 1, 1905, to tbe three parties named was $2,208.31. [630] The contracts for the purchase of the staves were verbal and covered all staves cut during the season by the parties named. They were to be delivered at the railway track in the defendant city during the winter of 1904 and 1905 at a specified price per thousand. Appellant was to cull, pile, and count them. The staves were all hauled to the landing in defendant city prior to May 1, 1905. The culling, inspecting, and piling was done by appellant in accordance with the contract. Payments were made from time to time during the winter. The agreements of purchase with the parties above mentioned were substantially the same, except that when the contract with Pricke & Rossman was made February 26, 1905, which was Sunday, part of the staves were piled at the railway landing, and the agreement provided that said Pricke & Rossman were to haul the rest of the staves onto the landing, subject to inspection, culling, and counting by the plaintiff, and to load or stand the expense of loading them on cars. On the day of purchase of the Pricke & Ross-man staves plaintiff made a payment on them, and during the winter and before May 1st other partial payments were made. During the last half of May they were sorted, counted, inspected, and paid for, and Pricke & Rossman paid the expense of loading them on the cars. The contracts for the Huntzicker and Blecha staves were made on secular days, and the staves were not to be delivered on cars, and were all delivered at the railroad track before May 1, 1905. The contentions of appellant for reversal are (1) that the title to none of the property passed to plaintiff until after May 1st, therefore it was not assessable to plaintiff; (2) that as to the Fricke & Rossman staves no contract, except the Sunday agreement, which was void, was made until after May 1st, therefore no title passed until after May 1, 1905; (3) that the board of review, without evidence, raised the plaintiff’s assessment $91.33, and that the proportionate amount of taxes assessed against plaintiff on the amount that his assess [631] ment was raised was illegal, and that he should recover that amount in any event. The court below found that the plaintiff had purchased the staves- in question and that they were delivered to him in defendant city on and prior to the 1st day of May, 1905, and that plaintiff was the lawful owner on said day. We think this finding is supported by the evidence and that the plaintiff was the owner of the staves on the 1st day ■of May, 1905, and therefore they were properly assessed to him in the defendant city. Secs. 1040, 1044, Stats. (Supp. 1906). It is quite clear, we'think, upon the evidence that there was a delivery when the staves were piled at the landing or railway track in the defendant city in accordance with thé agreements. Nothing further was to be done by plaintiff, except in the case of the Ericke & Eossman staves the vendors were to pay the expense of loading, which they did, though after May 1st. After the delivery at the railway station, which was before May 1st, plaintiff was to do the inspecting, culling, and counting. So we are of opinion that the plaintiff was the owner of the staves on May 1, 1905, within the meaning of sec. 1044, Stats. (Supp. 1906). Merrill v. P. B. Champagne L. Co. 15 Wis. 142, 43 N. W. 653; State ex rel. Edward Hines L. Co. v. Fisher, 129 Wis. 57, 108 N. W. 206. It is argued by appellant that because the staves were to be inspected, counted, and culled the title did not pass to plaintiff until this was done, which took place after May 1st. This •contention was held against plaintiff by the court below, and we think rightly so upon the evidence. Galloway v. Week, 54 Wis. 604, 12 N. W. 10; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445. There was no selection to he made. All the merchantable staves were sold, and it seems quite clear from the evidence that it was the intention of the parties that the title should pass when the staves were delivered at the railway track. State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359; Pike v. Vaughn, 39 Wis. 499; Mackellar v. Pills [632] bury, 48 Minn. 396, 51 N. W. 222; Weld v. Cutler, 2 Cray, 195. Even conceding, as contended by plaintiff, that the contracts being verbal were void under the statute of frauds, the staves were all delivered before May 1, 1905, and payment made during the time of delivery; hence the contracts became valid upon delivery and partial payment before May 1st. Amson v. Dreher, 35 Wis. 615; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Kerkhof v. Atlas P. Co. 68 Wis. 674, 32 N. W. 766. But appellant claims that the acceptance of a carload of the Huntzicker staves in April, 1905, was under a special contract and did not amount to an acceptance under the contract of purchase; but the evidence does not support this contention. Moreover, other partial payments were made upon the Huntzicker staves, as well as upon the Ericke & Ross-man and Blecha staves, before May 1, 1905. As to the Ericke & Rossman staves it is claimed that the contract was void because made on Sunday. But this agreement, though void, was subsequently and before May 1, 1905, renewed and validated upon a secular day by payments in accordance with the original agreement and execution of the agreement as originally made; therefore a new, valid contract was made. Schmidt v. Thomas, supra; Hopkins v. Stefan, 77 Wis. 45, 45 N. W. 676; Williams v. Lane, 87 Wis. 152, 58 N. W. 77; Melchoir v. McCarty, 31 Wis. 252; Ziemer v. C. G. Bretting Mfg. Co. 142 Wis. 224, 125 N. W. 318. The fact that the board of review raised the valuation a small amount without taking evidence, which raise would increase the tax about $1.50, is not sufficient to warrant us in disturbing the judgment below, especially in view of the fact that there is no proof of substantial injustice. McIntyre v. White Creek, 43 Wis. 620; Hixon v. Oneida Co. 82 Wis. 515, 52 N. W. 445. Upon the record we think it clear that the judgment below [633] ■was right and should he affirmed. The staves were all delivered at the place agreed upon before May 1, 1905, and nothing further remained to be done by the vendors except to agree upon the count made by the appellant, and in the Ericke & Rossman case pay for loading on cars. The count was assented to by the vendors, the expense of loading the Ericke & Rossman staves paid by them, and the balance due upon the contracts paid during theTnonth. of May, 1905. ■By the Court. — Judgment affirmed.