Ford v. Smith , 27 Wis. 261 ( 1870 )

Dixon, C. J.

The logs in controversy were cut upon land claimed by the plaintiffs to have belonged to the estate of their intestate, William E. Ford, and which they as the administrators claimed the right to enter upon and control. The logs were cut by their direction, or by the direction of one of them, the plaintiff Mrs. E. A. Ford, the administratrix, under such claim asserted in good faith. The witness Imus testified that the logs belonged to the estate. There was no testimony disproving or tending to disprove the claim thus made on the part of the plaintiffs. There was no testimony proving or tending to prove that the land did not belong to the Ford estate, or that Imus or any one else had or pretended to have any title or interest in it. The testimony on the part of the plaintiffs was, that Imus cut, rafted and run the logs by authority from them and as their agent, and that as such agent he had them in his possession at the time they were seized and taken away by the defendant. If the jury believed this testimony — and there was none to the contrary — it was sufficient prima facie evidence of original title and ownership in the plaintiffs to enable them to recover in this action, without showing title to the land. The possession of Imus was the possession off the plaintiffs, unless the jury found the fraud or collusion between Imus and the plaintiff Mrs. Ford, which depended upon entirely different considerations, and which, if found, might have had the effect to deprive the plaintiffs of their title as against the judgment creditors of Imus. In this attitude of the case, the fraud depending upon the contract between Imus and Mrs. Ford, and the relations existing between them, and not upon any supposed title or interest of Imus in the land, the proof of title in the plaintiffs was sufficient, without going farther and showing that the land actually belonged to the estate.

Nor do we think it disproved, or tended to disprove, title in the plaintiffs, so as to justify a nonsuit, that the money advanced by Mrs. Ford to Imus upon the contract, so as to enable him to get out the logs, came from life insurance payable to her. It was her right and privilege, if she thought the interests of the estate of her deceased husband would be thus promoted, to advance her own money in that way, if she chose. It was a matter to be considered by the jury on the question of fraud and collusion; but, these being negatived by the verdict, it did not affect the title of the plaintiffs to the property.

And the several requests to charge, made by the defendant, were properly refused.

The first was properly refused because it was assumed that there were “ inconsistent surrounding-facts.” We see no evidence tending to prove this; but even if there had been, it was a matter proper to have been submitted to the determination of the jury. It was not for the court to assume the existence of such facts. If the language of the request had been, “ if inconsistent with surrounding facts,” a different question as to its propriety would have been presented.

The second request was inapplicable, and without evidence tending to support it. There was no evidence proving or tending to prove an agreement to divide the profits as such. The division of the profits, if any, was at most a mere arrangement by which Imus was to obtain compensation for his labor and services, or as wages to be paid to him. This did not constitute a partnership as between the parties, and none was intended. Parsons on Partnership, pp. 70, 71, 88 to 93, and notes and cases cited; Appleton v. Smith, 24 Wis. 336. The only testimony on this subject was that of Imus. He says: “ There was no bargain as to what she {Mrs. Ford) was to pay me for cutting the logs off. She was to find the means, and see what they would amount to. I was to go on and cut them off as cheap as I could, and get them to the boom and sell them, make the most out of them I could, and when it was through we would talk of what would be right between us. There was no agreement as to compensation' at the time.”

Again he testifies: “ I suppose I was to have what was left out of the logs after paying Mrs. Ford her money back, and paying what the timber stumpage was worth. There was no bargain talked about it, only I was to go on and get out the logs as cheap as possible, and when we got through, if there was any profit, we were to divide the profit.”

But there was still another reason for refusing the request, even supposing a partnership to have existed, which was that the defendant did not levy upon and sell merely Imus’s interest in the logs. He sold the entire property. He was apprised of the plaintiffs’ title and claim before he advertised and sold, and it is well settled that the sale by an officer of the entire property, under such circumstances, is an abuse of his legal authority, which renders him liable as a trespasser ab initio. Waddell v. Cook, 2 Hill, 47; Walsh v. Adams, 3 Denio, 125; Wheeler v. McFarland, 10 Wend. 318. After refunding the money advanced by Mrs. Ford, and an allowance of a fair price for the stumpage, it does not appear that there was any profit to divide. Indeed, it appears that there was none, so that Imus’s interest in the property, on the supposition of a partnership, was nothing, and the measure of the plaintiffs’ damages was the full value at the time of sale.

The third request to charge was inapplicable- to the case, and unsound in law. There was no evidence whatever that the plaintiffs had permitted Imus to sell and traffic in and use and control the property in the same manner as if it was his own. It does not appear that the plaintiffs ever authorized or had the slightest knowledge of Imus’s statements made to third persons that he owned the pr.operty, or could sell it as his own or otherwise than as agent; and without such authority from or knowledge on the part of the plaintiffs, it is too clear that they were not to be prejudiced by such statements. And the proposition, too, that there could be an estoppel growing out of a mere levy made in consequence of such statements, although authorized, when the sheriff was informed of the truth, and notified not to proceed, before, sale, is untenable. The sheriff does not, by the levy alone, acquire the position or the rights of a purchaser for value without notice.

The fourth request was properly refused because the price for which the logs were sold at the auction sales was not proof that they were worth no more, or of the value thereof. Proof is the effect of that evidence which is sufficient to produce conviction in the mind of the truth or existence of the fact in controversy. What the evidence proves is for the jury to determine. The price obtained at auction was evidence, tending to prove the value, and as such was properly submitted to the consideration of the jury with the other evidence upon that subject.

The fifth request was merely an abstract proposition, from the refusal of which neither the defendant lost nor the plaintiffs gained anything. The plaintiffs’ attorney had admitted the sales upon the executions, and the admission was of course of sales duly and legally conducted, and must have been so understood by the jury.

The sixth request has been already disposed of under the first point considered. There was no error in the refusal.

The seventh request was based upon a purely imaginary state of facts, and so ought not to have been granted. There was no testimony in the case to justify the inference, or authorize the jury to find that the real transaction between Mrs. Ford and Imus was a loan of money from her to him, to be repaid on a sale of the logs in controversy.

Of the several instructions given at the request of the plaintiffs, and all of which were excepted to by the defendant, it is unnecessary to speak separately. It is enough to say of them generally, that their correctness and propriety will sufficiently appear from the observations which have been already made.

By the Court. — Judgment affirmed.