McIver v. Williams

53 N.W. 847, 83 Wis. 570, 1892 Wisc. LEXIS 265

• Court: Wisconsin Supreme Court
• Decided: December 6, 1892
• Status: Published

Opinion

Winslow, J.

In order to justify the direction of a verdict for plaintiff, the court must have concluded that the un-contradicted evidence showed that there had been a sale of the horses and wagon upon credit, which had become absolute at the time of the recaption of the property by defendant. In this, we think, he was mistaken. The defendant gave bis version of the transaction at length, and we think that a jury would be entirely justified in finding therefrom that no sale upon credit was in fact made, but that defendant simply allowed the intestate to take the horses a few days to try them, and agreed that in case they were satisfactory after such.trial Thiele might pur‘chase the entire property for $400 in cash. If this was in fact the agreement, the defendant was entitled to retake the property as he did, because payment would be a condition precedent, or at least concurrent, and the right of property would not pass until payment was made or waived, even though a delivery of the property, upon trial only, had been made. The defendant was entitled to have this question submitted to the jury.

It appears that Thiele was garnished by several persons, as a debtor of Williams, on the day before Williams took possession of the horses, but that Williams was not served with process until several days afterwards. There is nothing in the record to show whether the garnishee actions referred in any way to an indebtedness supposed to arise from a purchase of the horses, or in fact whether the actions ever went to judgment. We cannot consider what the effect might be if in fact they did go to judgment against Thiele.

By the Court.— Judgment reversed, and cause remanded for a new trial.