Schenning v. Devere & Schloegel Lumber Co. , 173 Wis. 20 ( 1920 )

Eschweiler, J.

The plaintiffs asserted in the complaint and upon the trial that by the action of the parties, including defendant’s delay in ordering the shipment of the hemlock, title to it was to be considered as having passed before the fire and for that reason the loss should be borne by defendant. The trial court, however, held, and we think property, that under the terms of the contract the title was not intended to pass until the plaintiffs ,had performed the duty resting upon them under the contract of loading the same upon cars.

Judgment was directed by the trial court on the ground that the loss was property chargeable against defendant by reason of its delay in.giving orders for its shipment, and under the rule of law whose statutory embodiment is found in sub. (2), sec. 1684i — 22, Stats., which provides that, where a delivery of personal property under a contract of sale has been delayed through the fault of either buyer or seller, the goods are at the risk of the party at fault as regards any loss which might not have occurred but for such fault.

Appellant contends with quite a persuasive argument that the conduct of the parties in recognition of their apparent respective rights and liabilities under the contract, and particularly by reason of the plaintiffs failing to protest against the suggestions made by defendant in its letter of April 28th, quoted above, and further failing to immediately ship the hemlock without waiting for orders, was such an-acquiescence in the delay as to leave the liability for the destruction of this property where it originally rested under the contract, namely, on the plaintiffs as owners-..

Under the evidence it became, however, purely a question of fact as to whether or not the failure to give shipping orders by defendant, even after the letter of April 28th, was an unreasonable period of delay in view of the 'known and recognized danger from forest fires. What would have been a reasonable time for ordering the shipment while the snow was still on the ground, when no. such danger was present, was- not necessarily the standard by which to judge the-element of reasonable time after such a period and when danger was much more possible owing to the known condition in the woods. ■

' The • plaintiffs might well be considered as ■ reasonably waiting from day to day for shipping orders in reliance upon: the promise of defendant in its letter of April 28th of giving definite information within a dajr or two.

That the plaintiffs failed to assert a claim for such loss for some months after their cause of action actually arose does-not of course defeat their right of action.

'• We cannot satisfy ourselves that the findings of the court in this regard were clearly wrong and the judgment must be affirmed.

By the Court. — Judgment affirmed.