Opinion
September 7, 1954 —
October 5, 1954.
APPEAL from a judgment of the circuit court for Kewaunee county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellant there was a brief by Warne, Duffy Dewane of Green Bay, and oral argument by Lloyd O. Warne.
For the respondents there was a brief by Neumann Slatky, and oral argument by Albert F. Neumann, all of Kewaunee.
Action by plaintiff Henry J. Umentum against defendants Alois Arendt and Mrs. Alois Arendt, his wife, for damages arising out of the alleged unlawful sale by defendants of certain cattle belonging to plaintiff. Upon the verdict of a jury, the circuit court entered judgment for the defendants dismissing plaintiff's complaint. From that judgment plaintiff appeals.
On February 17, 1947, defendants entered into the following written agreement with plaintiff :
"Agreed between Alois Arendt and H. J. Umentum to rent seven cows, the sum of $25 a year for each cow calves back at 16 days old." (Description of cattle omitted.)
Plaintiff delivered the seven cows to defendants' farm and was paid for the first year's rental. When calves were born to these cows defendants notified plaintiff by post card and he called for them after they were sixteen days old. At the end of the first year plaintiff removed four of the original animals, leaving three cows for which he collected another year's rent. Later in 1948 plaintiff delivered a bull to defendants for breeding purposes, but charged no rental for the bull.
Defendants testified that at the end of the second year, prior to February 17, 1949, they informed plaintiff that they no longer desired to rent the cattle and requested him to pick them up; that on several occasions during 1949 plaintiff said he would remove them but failed to do so.
On April 22, 1949, defendants' attorney addressed the following letter to plaintiff:
"I have been asked by Mr. Alois Arendt, Route 4, Luxemburg, Wisconsin, to write to you regarding the three cows and one bull he rented from you last year. The term of the rental was up on February 17th, and you were advised by Mr. Arendt at that time to remove the cattle from his premises. As you know, there is now, in addition, a five-weeks-old calf.
"It is my understanding that you were supposed to pick up all calves when they were sixteen days old.
"Demand is hereby made upon you for the expense incurred in feeding and caring for your cows, and unless they are removed immediately, they will be attached in order to satisfy the claim.
"May I please hear from you immediately."
On March 9, 1950, defendants addressed the following letter to plaintiff :
"Since you don't come to take out your stock I must inform you that you have a cow here with mastitis and you better come around soon now and get her out. You also have a cow that freshened Mar. 5. Another coming soon, next wk.
"We now expect a settlement for feeding your stock over a year. The time was up Feb. 17, 1949."
On May 6, 1950, plaintiff was served with a ten-day notice of sheriff's sale of the animals, which then included three calves born during the previous year. The sale was held May 17, 1950, and defendants tendered a check in amount of $67.90 to plaintiff for the balance due after payment of the defendants' lien and costs. Plaintiff refused the check and sued to recover the rental value of the three cows for the last year's use by defendants, together with the value of the cattle sold on May 17th.
Plaintiff testified that he visited the Arendt farm in February of 1949 to pick up a calf, but there was no discussion regarding rental of the cows for another year. He admitted that he was always paid the rent in advance, but said he did not make a demand for 1949 rent. He testified that at no time during 1949 did defendants tell him they did not wish to rent the cows for that year nor request him to call for them; but he said that when, early in 1950, Mr. Arendt asked him to get the cows, "I told him I was very busy at the time but I would get them as soon as I can."
On the special verdict the jury found:
"First, question: Did the defendants notify the plaintiff on or about the expiration of the second year that they no longer desired to rent the cattle?
"Answer: Yes.
"Second question: If you answer the First question `Yes,' then answer this Second question:
"Did the plaintiff, on receiving such notice, agree to call for and pick up the cattle from defendants' farm?
"Answer: Yes."
It also found that defendants did not pay for the delivery of the original cows on February 17, 1947; that the second year's rental was $60; that the reasonable market value of the cattle when sold on May 17, 1950, was $975.
After verdict the trial court denied plaintiff's motion for judgment against defendants in the sum of $975 for the value of the cattle sold, and for the additional sum of $75 for the reasonable rental value of the three cows notwithstanding the verdict. Defendants' motion for judgment on the verdict dismissing plaintiff's complaint was granted.
Plaintiff does not take the position that the findings of the jury are not supported by the evidence nor does he ask for a new trial. He bases his case upon the theory that the law of bailment operates to require a bailee to redeliver the property at the end of the term and if he does not do so, the bailor has the right to consider the bailment as continued or renewed, citing Nudd v. Montanye (1875), 38 Wis. 511; Enos v. Cole (1881), 53 Wis. 235, 10 N.W. 377; Bradley v. Harper (1920), 173 Wis. 103, 180 N.W. 130; Anno. 144 A.L.R. 1024 et seq.
The general rule of bailment as expressed in those authorities, however, does not preclude the making of a contract under which the bailor agrees to call for the property when the term of bailment ends. Plaintiff cites no authority holding that such a contract is not valid, and we are unable to find any. In our opinion the express provisions of the contract between the parties are controlling; and it was for the jury to decide whether, on the evidence presented, the agreement here did provide that plaintiff would remove the cattle from defendants' farm on receiving notice at the end of the term that they no longer wished to rent them. Testimony as to the conduct of the parties and the circumstances here involved amply supports the jury's finding that such was in fact the understanding between the parties.
Plaintiff complains that the court denied his motion made at .'the end of the testimony for amendment of the pleadings to the effect that if no agreement was found to have existed between the parties from 1949 to 1950, the defendants' possession and use of the cattle during that time constituted a holdover under the bailment law, and that the court should answer the first question of the special verdict "No" as a matter of law. In our view, the question presented was one of fact, not of law, and the court's denial of the motion was proper.
Finally, plaintiff contends that defendants failed to prove that they proceeded legally in the foreclosure of their lien. It was not incumbent upon defendants to do so. It was plaintiff's burden to prove that the sale was invalid. But nowhere does the record indicate, nor is it pointed out either in plaintiff's brief or oral argument, that defendants failed in any respect to comply with the statutes governing the foreclosure of a lien acquired under sec. 289.43(3), Stats. The record does show that in April, 1949, defendants made demand upon plaintiff for payment of the expenses incurred in feeding and caring for the cattle; that plaintiff was duly served with a notice of sheriff's sale; and that following such sale defendants offered to account to plaintiff for the balance of the proceeds of the sale.
By the Court. — Judgment affirmed.