Fletcher v. Ingram , 46 Wis. 191 ( 1879 )

Obtow, J.

This action is for the conversion of certain cribs of lumber by the defendants as copartners, and the answer admits the copartnership and denies all other allegations of the complaint.

It was in evidence, that, in the summer of 1876, the plaintiff contracted with the firm of Saul & Rally, operating a sawmill on thé Chippewa River, to deliver them logs at their mill, to be sawed into lumber, and to be paid therefor at the rate of sixty per cent, of the product thereof, in merchantable lumber to be delivered at Reed’s Landing on the Mississippi, opposite the month of said river. The plaintiff had delivered to Saul & Rally a large quantity of logs under this contract, and a part of them had been sawed into lumber before the 18th day of September of that year, and then Saul & Lally, having met with reverses, failed in business and mortgaged all of their logs to the defendants, who were thereafter to stock said mill, and from that time the plaintiff was to look to them for the balance of the lumber coming to him in payment for said logs. At this time Saul & Lally had sawed, and put into the river just below their mill, seven cribs of lumber for the plaintiff, under said contract, and marked each crib with the name of the plaintiff, “A. K. Fletcher,” or with his initials, “ A. K. F.,” and had the same in readiness to be run down the river according to the terms of said contract. One McKin-non had been in the employment of Saul & Lally during that season, in running their lumber down the river to Eeed’s Landing, where it had been sold; and he had in his employment for that purpose a crew of men, among whom was one Patrick Holland as second pilot; and this pilot was to run these cribs down the river to Eau Claire, three miles below, there to be taken charge of by McKinnon, who was at that city at the time, and was making preparations so to do by making or repairing oars, and had receipted for the cribs, and had received a blank receipt, to be signed by the person who was to receive said lumber at Eeed’s Landing, but had not actually taken possession of the cribs with his men; and they were still in the place, tied up to the bank and undisturbed, where they were placed by Saul & Lally.

This was the condition of things when the plaintiff came to the mill, about the 20th day of that'mouth. He had written to Saul & Lally at different times, to know whether his lumber was ready, and they had written to him that it was ready. When he came to the mill, he asked Lally, one of the firm, if his lumber had been manufactured, and Lally told him that it had been, and went with him down the bank of the river and showed him the cribs, which were in sight, and told him that lumber was manufactured for him and marked to him, and that the balance for any logs that were sawed there after the 18th day of September, tbe defendants would pay for him, and that he would hare to loot to them for it, and not to Saul& Tally; and the pilot showed him the blank receipt. There was at the time something more due him than these cribs would pay. There was no other lumber mixed with this lumber in' the cribs, and the amount of the lumber in the cribs was figured up between the plaintiff and Tally, and a bill of it was made out, in which it was charged to the plaintiff; and Tally told plaintiff that the pilot would run it down to Eeed’s Tanding for him, the plaintiff, and deliver it to the watchman of the defendants; and plaintiff said “that was all right.” On the same day, the plaintiff went to the office of the defendants and saw their bookkeeper, a Mr. Chamberlain, and told, him to do with this lumber just as they did with their own at Eeed’s Tanding, tie it up, and wait until the market was better, and then sell it just as they thought best. Very soon thereafter, Holland, the second pilot, ran the cribs down to Eau Olaire, and delivered them, together with the blank receipt, to McKinnon, who tied them up to the bank near Eau Olaire, and then attached the lumber as the property of Saul & Tally, upon their alleged indebtedness to him; and the cribs remained there tied up until after judgment in the attachment suit, and were then by the sheriff sold to McKin-non, who afterwards sold the same to George A. Potter, of the firm of Ingram, Kennedy & Go., the defendants, and received payment therefor by a draft handed to him by the said Chamberlain, the bookkeeper of said firm.

The cribs were then run down the river in connection with other lumber of the defendants, and the steamer “ Clyde,” partly owned by them; and they went in to make up a raft not full, belonging to the defendants, and were sold at some point on the Mississippi river by them, at such rate that the cost of running it was saved, and part of the cost of running the other lumber, which made the profits of the purchase, and lessened by so much the expenses of said steamer.

This is substantially all the evidence material to be considered, and these are the facts which the jury may have found from all the evidence given on the trial; and upon the case thus presented, the following questions were raised and most ably argued by the learned counsel, upon this appeal:

1st. Do these facts show such a delivery of the lumber at the mill, by Saul & Rally to the plaintiff, as completely divested them of all property in it, and made the title to it perfect in the plaintiff, so as to be beyond the reach of the attaching creditors of Saul & Rally and subsequent purchasers from them?

2d. Do they show a good cause of action and right of recovery against all of the defendants as copartners?

Upon the first question, the numerous authorities cited and the able arguments made would have been of great benefit to the court in a more doubtful case. An unusually full statement of the facts has been made, in order to show the real character of this alleged delivery; and we think it is beyond all controversy or doubt, that the parties not only intended to make a delivery of this lumber at the mill, but did in fact perfect such delivery. It is true that the place of delivery designated in the contract was at Reed’s Randing; but it was competent for the parties to change this place of delivery, and we think that the facts show that they did change it, and, in consequence of the embarrassed condition and failure in business of Saul & Rally, they notified the plaintiff to come and receive this lumber • — ■ which already equitably belonged to him — at the mill, in payment ypro tatito of their indebtedness to him on the logs purchased. The lumber was set apart and marked with his name or initials, pointed out to him, examined by him, the amount computed, and a bill of it made out, in which it was charged to him; and he at once assumed control and exercised acts of ownership over it, by directing Chamberlain', the book-keeper of the defendants, as to its delivery to their watchman at Reed’s Landing, and its disposition by sale.

It was certainly commendable, and by no means fraudulent, in Saul & Rally, to notify the plaintiff, to whom in justice and equity it belonged, to come and receive a delivery of this lumber at the mill before it should start on its way to Reed’s Landing, when their failure in business and pecuniary embarrassments would be likely to invite attachments upon their property, and make their further possession of this lumber hazardous to the rights of the plaintiff; and it is most reasonable to presume, that the plaintiff, on his arrival at the mill, when he might have suspected, if he did not actually know, the true condition of things, had an anxiety commensurate with his interests, to secure this lumber as his only chance and hope of payment, before it should pass beyond his reach. These circumstances, in connection with what was said and done at the time, cannot be ignored in construing the acts and ascertaining the intention of the parties as to the delivery of the lumber.

Whatever may have been the decisions of other courts, applicable to other facts, in respect to what constitutes a delivery, the law upon the subject was well expressed in Sewell v. Eaton, 6 Wis., 490, and has been repeated and reaffirmed in numerous cases as applied to a great variety of facts since decided by this court, “that if it clearly appear to have been the intention of the parties that the property should be deemed to be delivered, and the title to have passed, and especially if their acts be inconsistent with any other view, the mere fact that something remains to he done will not govern such intention.” Sanborn v. Hunt, 10 Wis., 437; Godfrey v. Germain, 24 Wis., 410; Morrow v. Reed, 30 Wis., 81; Pike v. Vaughn, 39 Wis., 500.

The objection taken, that these cribs of lumber, at the time of this transaction at the mill, had already passed into and were in the possession of McKinnon or his pilot as bailee, and that neither McKinnon nor the pilot had notice of this alleged delivery, we think, is not well taken. If, under the circumstances, either of them would in law have occupied the relation of bailee of the property, had he been in the actual possession of it, the evidence does not show that any such possession had been taken. The receipts and making or repairing of oars were mere preliminary steps or preparation to take charge of the cribs, which were still tied to the banks where they had been placed by Saul & Tally and undisturbed, and the pilot knew that Saul & Tally and the plaintiff had them under consideration for some purpose, by their asking him for the exhibition of his blank receipt; and McKinnon, whose business it was to run lumber down the river for Saul & Tally, was not in the vicinity of the cribs, nearer than the city of Eau Claire.

To constitute a person a bailee of property, he must have such full and complete possession of it as to exclude, for the time of the bailment, the possession of the owner (Benj. on Sales, § 174), and he should have so far assumed the charge and control of the property as the sole custodian of it, as to be liable to the owner for any losses or damages occasioned by his neglect or fault in the manner in which he discharges his trusts in respect to it. Story on Agency, §§ 200-204; Edwards on Bailments, § 4. The old and still recognized definition of bailment is, “ A delivery of goods in possession, and is either to'keep or employ ” (Finch’s Taw, b. 2, ch. 18); and such a full delivery of the property must have been made to the bailee, as to require a redelivery of it by the bailee to the owner, after the trusts of the bailment had been fully discharged. Jones on Bail., 1. It is very clear that no such possession of the cribs had yet been taken by either McKinnon or his pilot. But the evidence does not show that McKinnon, in his general employment by Saul & Tally to run their lumber down the river, or his pilot working under him, was or would be, in any legal sense, a bailee of the lumber. To make a person a bailee in possession of property sold, so as to require notice to him to complete a delivery, there mnst be some special trust in respect to the property imposed upon him, and he must have some interest in or lien upon it for advances, charges or services, as in the case of a consignee, agent to sell, warehouseman or common carrier. Edwards on Bail., § 420. All of the elements, responsibilities, requisites and conditions of a bailment are wanting in this common employment of McKinnon or his men in doing service to Saul & Lally in running their lumber down the river.

McKinnon and his men were mere servants and employees of Saul & Lally to do a particular hind of labor in respect to their lumber and rafts, the same as their other hands and laborers, in respect to such lumber, in some stage of its manufacture or condition about the mill; and they could not properly be considered as their agents, general or special, and-much less were they, in any sense, bailees of the property anywhere.'

Authorities need not be cited to show that such mere servants or employees, by their casual or incidental manual possession, necessary to their service, of the property of their employer, could not affect or exclude the possession of the real owner, or that their possession, if any, is the possession of their employer or of the owner.

On the second question, of the liability of all the defendants, as partners, for the alleged conversion, it is at least doubtful whether they have placed themselves by their answer in an attitude to raise it. It is alleged in the complaint that the defendants were partners, and as such converted the property. The answer admits the copartnership, and is otherwise a general denial, which would seem to go only to the title of the property and conversion as charged.

As a general rule, if defendants are sued as partners, and do not deny the partnership, it is admitted; and if any question of the liability of the partnership is not in some way raised by the pleadings, it is waived. Cooper v. Blood, 2 Wis., 62; Robbins v. Deverill, 20 Wis., 142. And when partners are sned for .a joint trespass, and all join in a plea in bar, it will be good as to all, if to any one of them. 1 Waterman on Trespasses, § 81, and cases cited. But the evidence sufficiently shows that the purchase of this lumber was within the general scope of the partnership business. It was rafted and sold with the lumber of the firm, and paid for by and through the firm, and the firm business received the- benefit and profits of the transaction; and it seems perfectly clear that, both in fact and law, it was a partnership transaction. In commercial dealings within the scope of the partnership, the acts of one partner are presumed to be for the benefit and in the interest of all the partners, whether present or absent, and bind the firm (Story on Part., §§ 102-104); and it is the órntual obligation of partners, and they are bound in good faith, not to deal as individuals and enter into private speculations on their own account and for their own exclusive benefit, in matters within the scope of their copartnership business. In soeie-tatis contraetibus fides exuberat. Story on Part., § 172.

We have perhaps given more space and attention to the consideration of the questions raised in this case, than necessary, for the reason that the learned counsel on both sides, by their research and very able arguments, have dignified and given them importance.