J. I. Case Threshing Machine Co. v. Folger

117 N.W. 944, 136 Wis. 468, 1908 Wisc. LEXIS 235

• Court: Wisconsin Supreme Court
• Decided: October 20, 1908
• Status: Published

Opinion

TimliN, J.

The plaintiff moved to strike out the answer, of the jury to the single question of the special verdict and insert in lieu thereof an affirmative answer and for jirdgment in its favor, and also moved for judgment notwithstanding the verdict.

The defendants contend that the action is one for conversion, and base various claims upon this proposition, all of which may be easily and accurately disposed of by ruling, as we do, that the action is one for breach of contract, and the conversion mentioned in the contract and in the complaint means merely that by the default of the agents the property has become theirs, and the liability to the plaintiff for the purchase price has been incurred as stipulated in the contract. The word “conversion” has various meanings,, both popularly and in the law. A familiar rule of interpretation refuses to give any such word a fixed and unvarying meaning, regardless of the context or of the subject matter of the writing.

The plaintiff's evidence made out a case for recovery by the plaintiff. The defendants met this by the testimony of defendant Aune, denying an admission alleged to have been made by him at the state fair, and by the testimony of defendant Folger to the effect that be telephoned from Hammond to Mr. Hope, the purchaser, telling the latter that the machinery was at Hammond and that Hope sbonld get it and settle for it. To this Hope replied that he would come to Hammond in the afternoon of that day, but did not come. After this telephonic communication, Folger, with the aid of Hope’s servant, Kotts, unloaded the machinery from the car and placed it on the roadside near the depot, in charge of no person, and notified Kotts to tell Hope to come and get the machinery and settle for it and not leave it standing there very long. Folger then went away from Hammond, leaving no person in charge of the machinery at Hammond with whom Hope could settle. Neither of the defendants lived at Hammond. Hope did in part as requested; that is to say, he did not leave the machinery standing there very long, and he sent Kotts for it and took it away, hut he did not settle for it.

The defendants fixed upon no time at which they would meet Hope, at Hammond or elsewhere, to settle for the machinery. They had no one at Hammond to settle with him, and allowed Hope an indefinite time within which he could take away the machinery. Folger did not, by his message to Hope through Kotts, expressly make the settlement for the machinery a condition precedent to Hope’s taking it away. This was a delivery to Hope within the meaning of the contract, because it was putting it in the power of Hope to take away the machinery before settling for it. It will not avail the defendants that Hope acted upon their invitation in part by taking away the machinery, but disregarded or postponed compliance with their request to settle for it. The contract in question would be practically worthless in this particular if its provisions prohibiting delivery before settlement could be evaded by leaving the machinery on the highway, not in charge of any person, notifying the purchaser to come in at an indefinite time and get it and settlfe for it, thus giving him an opportunity to get it -without settling for it, or to get it first and settle for it afterwards.

We must hold that upon the evidence of the defendants there was a breach of the contract in permitting a delivery of the machinery to Hope before he settled for it. It follows that the judgment of the court below must be reversed, with costs, and with instructions to that court to change the answer of tire jury from a negative to an affirmative and render judgment thereon in favor of the plaintiff, as prayed for in the complaint.

By the Gowrt. — It is so ordered.