Morrow v. Delaney , 41 Wis. 149 ( 1876 )

LyoN, J".

If the contract was for the sale of the logs to the defendant, and not merely an executory contract of sale leaving the title thereto and the risk of loss thereof in the plaintiff, still the unpaid balance of the purchase money did not become due until the defendant had a reasonable opportunity to get the logs into Pox river. There ean be no doubt that the defendant had such opportunity in respect to the logs not burned, and, but for the burning, would have had it in respect to all of them, before the "action was commenced. Hence, assuming that the title to the logs vested in the defendant ■under the contract, we need not determine the precise time when the balance of the price thereof became due; for in any view of the case such balance was due when the action was commenced.

The controlling question is, therefore, Did the title to the logs pass to the defendant by virtue of the contract? If so, the property was doubtless at the risk of the defendant, and he must pay for it, notwithstanding its destruction. Stated in another form, the question is, whether the contract is an executed contract of sale, passing the title to the property, and with it the consequent risk of the loss thereof, to the defendant; or is it a mere executory contract for a future sale, leaving both title and risk with the plaintiff ?

Nearly all of the numerous instructions prayed on behalf of the defendant either assert or depend upon the proposition, that the contract is an executory contract for the sale of the logs, and does not pass the title thereto to the defendant. ¡The argument in support of that proposition is based upon'the clause in the contract, .that the logs “ are to be scaled where they now lie, and before they are removed.” It is claimed that it was the duty of the plaintiff to have the logs scaled, or at least to join with the, defendant in having it done; and that, until they were scaled, the title thereto remained in the plaintiff; and the familiar rule of law is invoked, that K the contract is only executory when the goods have not been specified, or if, when specified, something remains to be done to them by the vendor either to put them into a deliverable shape or to ascertain the price.” Godfrey v. Germain, 24 Wis., 415.

In the present case, the logs were specified in the contract. A certain lot of logs in a particular place, not intermingled with other logs — the whole lot without exception or reservation,— was the subject of the contract. The price per thous- and feet was agreed upon, and the scaling was only necessary to ascertain the aggregate price of the whole lot at the agreed rate per 1,000 feet. The contract contains words of sale in jprmenti — “I have this day sold;” and had the quantity been agreed upon, and the provision relative to the scaling omitted therefrom, the title would have passed to the defendant upon the execution of the instrument and by virtue of it. Oases are not wanting which hold that in a contract like the one under consideration, the title passes to the vendee (unless a different intent is manifest), even though something remains to he done by the vendor — as weighing, measuring or counting, — to ascertain the aggregate price at the agreed rate. Some of those cases are cited in the brief of counsel for the plaintiff, and we believe they rest' on solid principles.

Moreover, we are not prepared to hold that this contract required the plaintiff to procure the logs to be scaled, or to join with the defendant in having them scaled. Certainly there is no express provision in the instrument to that effect. Doubtless it was competent for the plaintiff to have the scaling done, if he chose; but we fail to find the stipulation which binds him to do so. The parties are presumed to contract with reference to existing laws; and we then had, and now have, a statute which provides for a lumber inspector at Green Bay (where this contract was entered into), whose duty it is (among other things) to scale logs, and who is required to give a bond with sureties conditioned for the faithful performance of his official duties. Laws of 1864, ch. 167 (Tay. Stats., 751 et seq.). It does not seem to be a forced or unnatural construction of the contract, to hold that under it either party might have applied to the inspector and had the logs scaled at any time, but if the plaintiff did not, it was obligatory upon the defendant tc do so before he could remove the logs. This view is entirelj consistent with the language of the contract, and also with tne hypothesis that the title to the logs passed to the defendant immediately upon the execution of the contract and by virtue of it.

The views above expressed, taken in connection with the facts proved on the trial, as stated in the charge to the jury, and the further fact, which is not without significance, that the contract provides for the payment of interest from its date on the purchase money, impels us to the conclusion that the contract was for a sale of the logs in yprmenti, and hence, that the learned circuit judge gave a correct construction to the instrument, and that the above mentioned instructions prayed on behalf of the defendant were properly refused.

Another instruction was asked in respect to the weight which the jury ought to give to the testimony of a certain witness, whose testimony was contradicted by other witnesses. This instruction was refused, but the jury were told that they were the exclusive judges of the credibility of the' witnesses and the weight of the evidence. In this we perceive no error.

It is believed that the foregoing observations dispose of all the alleged errors. Inasmuch as we find no error in the record, the judgment of the circuit court must be affirmed. j

By the Court. — Judgment affirmed.