City of Boscobel v. Muscoda Manufacturing Co.

The following opinion was filed July 13, 1921: RoseNberry, J. Two principal questions are raised upon the appeal: First, Did the contract of December 23, 1919, vest the title to the property in the defendant ? Second, Did the court err in refusing to submit to the jury the question of whether or not the plaintiff was guilty of negligence in permitting its lessee, the George L. Hunt Manufacturing Company, to maintain upon the premises an unsafe stove and thereby materially increase the hazard to which the property of the defendant was subjected? A preliminary question was suggested upon the argument as to whether or not the situation was affected by reason of the fact that the property which formed the subject matter of the sale was a part of a building and so annexed to the freehold as to make its sale the transfer of an interest in real property. It is not claimed that the memorandum, even if the property be considered as an interest in real property, did not sufficiently comply with the requirement of the statute of frauds. The. contract being valid, the property was by its terms to be severed from the land upon which it stood. The contract should therefore be treated and construed as a contract relating to personal property. Wetkopsky v. New Haven G. L. Co. 88 Conn. 1, 90 Atl. 30; 1 Williston, Contracts, § 520. Whether or not the title to the goods described in the contract passed to the defendant depends upon the intention of the parties. Sec. 1684f — 18, Stats. The contract itself does not in terms say when the title should pass. Recourse must [65] be had, therefore, to rules of construction. Sec. 1684-i — 19 establishes the rules for ascertaining the intention of the parties as'to the time at which the property in goods is to pass to the buyer where there is no specific provision in the contract. Rule 1: “Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.” In this case the goods were ascertained and in a deliverable state. The buyer had the right at any time before June 1, 1920, upon payment of the remainder of the purchase price, to take the goods, and if the plaintiff had, upon tender being made to it, refused tO' deliver, the goods, the right of the defendant to recover the same in an action of replevin would have been complete. It is argued that the sale was conditional, that the payment of the remainder of the purchase price was a condition precedent to the right of the defendant to the possession of the property. While a sale by the terms of which the purchaser is to pay cash on delivery is in a sense conditional, (35 Cyc'. 323), the distinguishing feature of a conditional sale, as that term is used and understood, means a sale by which the title to the goods is to remain in the seller until the payment of the price but the possession and use of the goods are with the purchaser until there is a default in payment. Sec. 1684m — 1. The facts in this case bring it squarely within the provisions of Rule 1, and it must be held that the title to the goods passed to the defendant and the risk of loss was with it. Sec. 1684t — 22, Stats.; State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359; Thayer v. Davis, 75 Wis. 205, 43 N. W. 902. We. have carefully reviewed the evidence and are of the opinion that the trial court correctly held that there was no [66] evidence which would have sustained a finding by the jury that the plaintiff was guilty of a want of ordinary care in the management of its property, and further, that if it should be held that there was evidence as to a want of ordinary care there is no evidence to sustain a finding, if one should be made, that such want of ordinary care was the proximate cause of the injury which the defendant suffered by reason of the burning of the building. The claim is that the plaintiff was negligent in permitting its building to be occupied by the Hunt Manufacturing Company, particularly with reference to the use of a stove. That the defective character of the stove was the cause of the fire rests upon mere speculative inference, the evidence being almost if not quite conclusive that the fire did not originate by reason of the defective condition of the stove. By the Court. — Judgment affirmed. Eschweiler and Owen, JJ., dissent.. A motion for a rehearing was denied, with $25 costs, on September 23, 1921.