Ullman v. Austin

176 N.W. 60, 171 Wis. 29, 1920 Wisc. LEXIS 62

• Court: Wisconsin Supreme Court
• Decided: February 10, 1920
• Status: Published

Opinion

Rosenberry, J.

The main contention made by the plaintiff is that under the cases of Dexter v. Cole, 6 Wis. 320; Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778; Lucas v. Sheridan, 124 Wis. 567, 102 N. W. 1077, and Taylor v. Tigerton L. Co. 134 Wis. 24, 114 N. W. 122, the defendant was guilty of conversion. It appears that the defendant sold some brick from the Eighth-street yard, and that he made some claim of title under his bill of sale to the brick located in the yard. The amount removed was found by the jury to be 50,000. There is no evidence to sustain the claim that the defendant wrongfully exercised any control over the brick, except those removed from the yard, which amounted to conversion thereof. No useful purpose would be served by a rediscussion of the law relating to the conversion of personal property, as it has been fully discussed in the cases cited.

The effort of the plaintiff to recover part of the brick from the trustee in bankruptcy cannot affect his right to recover against the defendant for the amount of brick removed by the defendant prior to the bankruptcy proceed-' ings. Therefore defendant’s motion based upon the theory that the plaintiff had made an election inconsistent with his claim in this case, so far, at least, as the recovery here is concerned, can have no effect, as it appears that the defendant removed the brick for which he is held liable prior to the bankruptcy proceedings.

By the Court. — Judgment affirmed.