Gehl v. Peycke Bros. Commission Co.

ViNJB, J. 1. The defendant urges that since there is no bill of exceptions settled by the circuit judge the evidence cannot be considered by this court in passing upon the merits. In Lindenmann v. Kopczynski, 155 Wis. 164, 144 N. W. 196, the contrary was held, and the ruling is adhered to. Where the action of the circuit court is based wholly upon the return made by the clerk of the civil court, duly certified by him as provided by sub. 1, sec. 28, ch. 549, Laws of 1909, as amended by sec. 20, ch. 425, Laws of 1911 (Hirschberg’s Milwaukee County Laws, sec. 1333), and which return together with the order of the circuit court constitutes the record here, there is no need of a bill of exceptions. 2. Were it not for the arrangement with reference to furnishing a man and stoves, no serious question could arise as to where delivery was made. The offer by plaintiff was to ■sell cabbage for. $24 per ton here, meaning Milwaukee, and that offer was accepted. It is the settled law of this state that in the absence of contract provisions or circumstances showing a different intent, where there is a contract for the sale of chattels to be placed on cars by the vendor at a par [498] ticular place the title passes to the vendee when they are so-placed. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820; Fromme v. O'Donnell, 124 Wis. 529, 103 N. W. 3; State ex rel. Pittsburgh C. Co. v. Patterson, 138 Wis. 475, 120 N. W. 227; Southern F. & G. Co. v. McGeehan, 144 Wis. 130, 128 N. W. 879. The defendant contends that the-vendor’s agreement to furnish man and stoves for $2 per ton extra takes the case out of the general rule, and that the contract as finally concluded was that for $26 per ton the vendor-agreed to deliver the cabbage at Kansas City. "We have been unable to so construe the transactions. When the agreement to furnish man was made the first car had already been delivered to the railway company and title had passed to the vendee under the rule above stated. Owing to the severity of the weather the railway company refused to forward the shipment except upon conditions stated by it. The contract of the plaintiff was to deliver at Milwaukee. This he had done as to one car and was ready to do as to the other. Under the contract it was the vendee’s duty to comply with the requirements of the railway company. The fact that the vendor-agreed to do so at an additional cost per ton to the vendee did not change the original contract as to place of delivery. That it was understood by the vendee not to change it is evident from its letter wherein it says that should the expense of sending man with both cars be less than $2 per ton it expected to have the expense adjusted at actual cost. When a definite contract is made as to the chattels sold, the price, and place of delivery, such contract is not necessarily changed as to the place of delivery or the time of the passing of title by the fact that the vendor, for extra compensation or gratuitously, agrees to perform services relative to them after they have been delivered or have left the place of delivery, or that the contract in some other respect has been modified. Thus it was held in Allen v. Greenwood, 147 Wis. 626, 133 N. W. 1094, where staves were sold to be delivered at a certain rail [499] way station, that the fact that the vendor was to pay the cost of loading on cars did not defer the time of passing of title till the loading was done. In Southern F. & G. Co. v. McGeehan, 144 Wis. 130, 128 N. W. 879, it was held that the place of delivery of hay was not changed from where the .contract provided the vendor should make delivery on cars to the place of destination by the fact that the vendor shipped it to the latter place to his own order, since that was done for his security only; and in McCollom v. M., St. P. & S. S. M. R. Co. 152 Wis. 435, 139 N. W. 1129, it was decided that where a car had been loaded and inspected the passing of title was not affected by a subsequent unloading by the vendor. So here, the subsequent agreement as to how the shipment should be cared for did not change the contract as to the place of delivery. There is nothing inconsistent with the original contract in the later agreement, and it does not purport to modify such contract in any respect except as to the cost of the cabbage to the defendant, which increased cost was rendered necessary by the severity of the weather — surely not the fault of the plaintiff. He stood ready to deliver and did deliver according to his agreement. Since the evidence supports the findings of the civil court that plaintiff furnished an experienced man who exercised reasonable care in looking after the shipment — which findings are not disturbed by the circuit court, — it follows that plaintiff fulfilled his part of the contract and that judgment was properly awarded him in the civil court for the amount due. By the Court. — Order reversed, and cause remanded with directions to affirm the judgment of the civil court. •