Crosby v. German

4 Wis. 373

• Court: Wisconsin Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

By the Oourt,

Smith, J.

We think tbe court below erred in granting tbe nonsuit on motion of the defendant in error. Tbe contract between Mary B. Crosby and Ebenezer Crosby for tbe loan of tbe cattle to go to Minnesota, was executory. He was her agent in purchasing the cattle, and she was entitled to tbe possession of them until she should have delivered them to him under tbe contract of bailment. According to tbe evidence be was to purchase tbe cattle for her if be could, with tbe Fox note, which was her property. He did so. The cattle then became her property, and she might refuse to fulfill her contract of bailment, leaving him to bis action for damages. There is no evidence tbat she ever delivered tbe cattle to him, or tbat be ever bad possession of them under tbe contract of bailment; and even if it were so, the bailment was for a specific purpose ; and we are by no means satisfied that tbe case of tbe defendant (a mere tort feasor) would have been better. As it is, at tbe time of tbe taking of tbe cattle by the defendant, tbe possession of Ebenezer, tbe agent, was the possession of Mary, tbe principal. B

Tbe judgment of tbe court below is reversed, and cause remanded for further proceedings according to law.