Dubois v. Spinks

Vanclief, C. Action to recover damages for the conversion of one hundred and twenty cords of wood.

On October 12, 1894, John A. Meyer and his wife entered into a contract with two Japanese, by which the latter agreed to cut wood on land belonging to the former. The Japanese on the same day leased from T. D. Scriver a portion of his land, and by the agreement they were to haul the wood from the land where it was to be cut and pile it upon said leased land, and retain the possession of the wood until the price for cutting the same should be fully paid. Subsequently there was a [292]change in the agreement as to the hauling, it being modified, verbally, so that the hauling might be done by the Meyers, and they were to be allowed a reduction therefor. Under the agreement, about one hundred and twenty-six cords of wood were hauled prior to November 20, 1894, and piled by Scriver’s direction in two tiers outside and along and near his fence. On November 20,1894, while the wood was so placed, the Meyers, for the purpose of raising money to pay the Japanese, borrowed the sum of two hundred and twenty dollars from ths plaintiff, delivering to him their promissory note therefor; and, at the same time, and as security for its payment, they executed to him a bill of sale for said wood. After the bill of sale to plaintiff was signed, Meyer and his wife went with plaintiff and pointed out the wood to him, and measured it with a tape line. Meyer then said: “Mr. Dubois, there is the wood; it is yours. Do what you like with it.” Within three and a half hours thereafter Mrs. Meyer paid the Japanese for the cutting of the wood, and they released their lien and possession. The wood was not marked in any way, nor was it moved. It was understood by plaintiff and the Meyers that whatever security the Japanese had on the wood should inure to the benefit of plaintiff.

On November 23, 1894, the wood was seized by the defendant Spinks, a constable, on a writ of execution issued out of a justice's court upon a judgment in favor of defendant Dierssen against said J. A. Meyer. No notice of garnishment was served on plaintiff. On December 4, 1894, plaintiff served upon defendant Spinks a verified claim in writing, stating that he claimed the wood under a bill of sale from John A. and Agnes M. Meyer. On December 6, 1894, and before the sale of the wood on execution, plaintiff informed defendant Spinks that he had loaned the Meyers two hundred and twenty dollars on the wood, and held a promissory note dated November 20,1894, payable sixty days from date. The wood was sold in pursuance of said levy, and purchased by the defendant Dierssen.