Morgan v. Richter

174 N.W. 712, 170 Wis. 111, 1919 Wisc. LEXIS 32

• Court: Wisconsin Supreme Court
• Decided: November 4, 1919
• Status: Published

Opinion

Rosenberry, J.

1. There appears to have been an error of $31.13 in'the computation of the amount due under the plaintiff’s theory of the case. However, there \yas no motion in the trial court to correct this error. After the deci- ^ sion of the trial court, before the findings were filed, there was a reargument of the case, and upon this reargument it appears to have been agreed upon that the. amount due under the plaintiff’s theory was $291.40, but an error was made in inserting the amounts in the findings of fact, and, there being no motion to correct the error, we must presume that the judgment is right and the error was in the insertion of the amounts in the findings.

2. The main question presented is, Do the words net return as used in the second contract mean a net cash return to the garnishee defendant from the sale, or do they mean the amount for which the property sold less the expenses of sale? In this case we think it entirely unnecessary to consider the technical meaning of the terms net profits, net return, or net result. The contract itself states what is meant, particularly so when we have in mind the fact that the sale was made of property the title to which was already vested in the garnishee defendant, and the sole object and purpose was to arrive at the amount for which the garnishee defendant should be accountable to the main defendant. The contract says, “and if said sale result in a net return of $2,000 over and above all expenses of sale, then,” etc. This does not leave the matter of what is meant by the term net - return open to construction. The net return is to be ascer- • tained by deducting from the amount for which the property sold the expenses of the sale, and the judgment of the court is based upon the result so obtained.

3. It appears without dispute that on the day of the sale one horse was sold to Wilson for $170, and that a second horse was sold to the garnishee defendant for $170. Subsequent to the sale some arrangement was entered into between the garnishee defendant and Wilson whereby Wilson was to take both horses for $325. The possession of the horses wg.s delivered to Wilson under that arrangement. Subsequently the garnishee defendant replevied the horses from Wilson, shipped them to Milwaukee, and sold them, receiving $135 for them after deducting expenses. In the settlement the court charged the garnishee defendant with $325, and we think correctly so. It is a serious question whether or not he should not have been charged with $340. But there is no exception or motion to correct the judgment in that particular. We think the other items in dispute were also'properly chargeable to the garnishee defendant. They were sold on the day of the sale, at the prices at which they were charged. It was the duty of the garnishee defendant to see that they were sold to responsible parties. The whole responsibility for the sale was with the garnishee defendant. No useful purpose would be served by further discussing the details of these transactions. The arrangement was entered into not as a means of disposing of the property of the Rucks, title to which had already passed to the garnishee defendant, but for the purpose apparently of establishing the liability of the Rucks to the garnishee defendant and incidentally to convert the defendants’ property into money. On the basis of the contract the trial court’s determination was right and must be affirmed.

By the Court. — Judgment affirmed.