Strong v. Hoskin

55 N.W. 852, 85 Wis. 497, 1893 Wisc. LEXIS 297

• Court: Wisconsin Supreme Court
• Decided: June 21, 1893
• Status: Published

Opinion

Winslow, J.

We cannot agree with the conclusions of the circuit judge, that the stock' placed on the farm by Mr. Strong, and its increase, remained his sole property, and that the agreement of October, 1889, was simply a conditional sale of a part thereof to Moore. The terms of the agreement of January, 1889, seem to us to preclude such an idea. By the terms of this agreement the parties unquestionably entered on a joint enterprise for mutual profit, namely, the pasturage and sale of cattle. To this joint enterprise the plaintiff contributed the use of the farm, a lot of cattle, and feed. The defendant contributed his personal services in feeding and caring for the cattle, raising and securing hay and grain, and exchanging and selling stock. Each party had the right to purchase and put on the farm additional stock. The live stock fit for market were to be sold in the fall, and each party repaid what he had paid out for stock, with interest, and the balance of the proceeds equally divided between the parties. We can see no escape from the conclusion that the property which is contributed to this joint enterprise, and which is accumulated in the prosecution of it, is joint property. Certainly, Moore had an interest in the property more than that of a mere custodian or care taker. He became something more than a hired man. There was a common stock in trade, to which it was contemplated that each should contribute, and receive credit for his individual contributions. The property was not to be kept intact or in specie, but selling, trading, and exchanging was provided for and contemplated, with no provisions looking towards the keeping of the property of the parties separate and distinct. When a general sale was made in the fall, each was to receive back his cash advances with interest, and the balance realized was to be divided equally. Whát element of a joint adventure for mutual profit is'lacking here? We perceive none.

This construction of the agreement of January renders very plain the nature of the agreement of October. The parties met to settle their joint enterprise. They proceeded to sever their ownership of the joint stock of cattle, grain, and feed. They agreed that Mr. Strong should take twenty steers as his individual property, and Mr. Moore the balance of the property, subject only to a lien thereon in favor-of Strong in the nature of a mortgage to secure him from damage on account of his signature to Moore’s note. The inevitable effect of this construction is*to make the instrument a chattel mortgage, which must be filed in the proper office to be of any effect as to third parties. It follows that the circuit court erred in holding the transaction a conditional sale which would be valid as to all persons having actual notice thereof, even though not filed in the proper office.

A new trial thus becomes necessary.

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