
    Becker, Assignee, Appellant, vs. Holm and others, Respondents.
    
      November 17
    
    December 11, 1894.
    
    
      Sale of chattels: Action for price: Nonsuit: Construction of contract: Count and fury: Statute of frauds: Voluntary assignment: Sale by assignee on credit
    
    1. A nonsuit as to all of several defendants is erroneous if the case ought to have been submitted to the jury as to either of them.
    
      ■3. An oral contract is not void because the parties used language not technically correct or exact, if they understood it in a practical sense and attached to it a definite meaning; and the question as to what they understood by such language — in this case the words “bank-accepted paper,” “bank acceptance,” or “bank-accepted note ” — is one of fact for the jury.
    •3. In an action against H., S., and G. for the price of a steamboat there was evidence that G., claiming to act for all, had made an oral contract for the purchase of the boat, and had hired a man to haul it out of the river and prepare it for shipment by rail; that G. and H. afterwards expressed satisfaction with the boat and with the manner in which the man had done said work; that said man was paid by H., who also engaged him to watch the boat; and that S., in whose name a bill of sale was made out, admitted that the sale was made to him through G. as his agent. IIeld, that it was a question of fact for the jury whether there had been such an acceptance and receipt of the boat as to take the contract out of the statute of frauds.
    4. The validity of a sale made partly on credit by an assignee for the benefit of creditors cannot be questioned on that ground by the purchaser, but only by creditors.
    Appeal from a judgment of the circuit court for Eau Claire county: "W". E. Bailey, Circuit Judge.
    
      Reversed.
    
    This action was brought by the plaintiff, as assignee of one Talbot in a voluntary assignment for the benefit of his •creditors, to recover $2,000, the purchase price of a steamboat alleged to have been sold and delivered by the plaintiff to the defendants, JEoTm, Smith, and Gcurrison, November 18, 1892. The answers of the several defendants were, in substance, a denial of the allegations of the complaint. Upon trial before a jury, at the close of the plaintiff’s testimony the court gave judgment of nonsuit against the plaintiff, from which he appealed.
    It appears that the alleged sale was made by Talbot as ■the agent of the plaintiff for that purpose, and the correctness of the ruling of the court depends upon his testimony, which tends to show that the defendant Gcurrison, claiming •to act for himself and the other defendants, November 18, 1892, made a bargain with Talbot, the plaintiffs agent, to purchase the steamboat, then in the Fox river below the bridge at Berlin, for $2,000, payable $1,000 in cash the following Tuesday or Monday, and the residue in “bank-accepted paper,” “bank acceptance,” or “bank-accepted note,” ■— all of these expressions having been used by the witness, — payable September 1, 1893, with seven per cent, interest; that nothing was said as to what was meant by the expressions thus used, nor what banks should accept it, though the banks of Eau Claire were mentioned, but not any particular bank, and the note was to be delivered at Berlin; nor was anything stated as to how the bank should accept it, or that any bank was to sign or indorse it. Garrison represented that Smith did the managing for the defendants in the woods, and the defendant Holm was their man of means, and he (Garrison) was their woodsman, working on the streams and looking up timber, and that he had full authority to buy the boat. At this time he made arrangements with one Tiny Smith to take the boat up above the bridge and haul it out, preparatory to its shipment on the cars, for the sum of $80; and Talbot was to aid by giving directions, etc., but not to be to any expense. Tiny Smith procured help, hauled out the boat, and blocked it up on the' bank, and prepared it for shipment, and Talbot had given him the key that was used on the lower part of the boat,, and before the action was brought all the other keys, except one retained by Talbot. The defendants Garrison and Holm came to Berlin December Tth, and had an interview with Talbot, and both declared that they were satisfied with the-condition of the boat, and the evidence tended to show that the parties waited there a considerable time for the plaintiff' to come from "Winnecomie to execute a bill of sale of the boat; and in the meantime some conversation was had in respect to making a sale of the boat for cash in hand, and Holm made an offer of $1,500, which was refused, and nothing further was said on the subject. At the time of the alleged agreement, Garrison stated the boat was to be used for towing logs on Lake Manitowish and on the waters of the Elambeau or Chippewa rivers, and it was to be transported on the cars. He desired time to submit the matter to the parties at Eau Claire, and it was agreed that he was , to return and telegraph directions, and accordingly, on the 19th of the same month, he sent a telegram from Eau Claire to Talbot, saying, “Pull-out the boat.” When Garrison and Holm were at Berlin, on the 7th of December, they took measurements of the boat and discussed the question as to the convenience of loading it. At the request of Holm, Talbot repeated to him the statement of the bargain .made with Garrison. The bill of sale was to be made to the defendant Smith. This was by request of Mr. Holm, and it was executed accordingly on the 8th of December, ready for delivery. The arrangements for the purchase of the boat were-made by Garrison. Smith subsequently admitted that the agreement to buy the boat was made for him, and claimed that the bargain was for $1,000 cash and his note for $1,000,, due the 1st of September, but that nothing was said about there being a bank acceptance, or any indorsement. The-defendant Holm afterwards paid Tiny Smith the agreed price for taking the boat out of the river and blocking it up,, and the latter claimed there was something due him for extra work, and up to and at the time of the trial he claimed to hold possession of the boat for the defendants and as security for his pay.
    Eor the appellant there was a brief by Perry Niskern, attorney, and L. A. Doolittle, of counsel, and the cause was. argued orally by Mr. Niskern.
    
    Eor the respondents there was a brief signed by Wickham (& Farr, attorneys for Holm and Garrison, and Geo. G. cfr Fred A. Teall, attorneys for Smith, and oral argument by James Wickham.
    
    They contended, inter alia, that the contract was void, for uncertainty. Orem v. Ganger, 36 Wis. 369; 1 Parsons, Cont. -415, 525; WiUhowsky v. Wasson,- II N. C. 451; Hutton v. Moore, 26 Ark. 382; Brown v. dole, 45 Iowa, 601; Leonard v. Oa/rter, 16 Wis. 601; Cole v. Gla/rli, 3 Pin. 303; 1 Am. & Eng. Ency. of Law, 529. “No question affecting tbe interpretation of contracts can properly be submitted to tbe jury, except those arising upon conflicting evidence as to tbe terms of tbe agreement, or where extrinsic evidence raises some doubt over tbe identity of tbe subject matter or of tbe clabnants thereunder.” Home Mut. Ins. Go. v. Boe, 11 Wis. 33, 41.
   PiNNBY, J.

1. We think that there was sufficient evidence to require tbe submission of tbe case to tbe jury, certainly as to tbe defendants Smith and Garrison. Whether there was sufficient evidence as against tbe defendant Holm it is not necessary now to consider, for tbe nonsuit was granted as to all tbe defendants and was erroneous if tbe case ought to have been submitted to tbe jury as to either of them. Gerhardt v. Swaty, 51 Wis. 24. Tbe points principally considered at tbe argument were: (1) Whether tbe agreement of sale was void for uncertainty; and it was insisted that there was no such language known in tbe law or in business transactions as “ bank-accepted note ” or “ bank-accepted paper,” and that therefore tbe minds of tbe parties bad not met, and that they bad not understood tbe same language in tbe same sense, and that there was no evidence as to what kind of notes tbe banks of Eau Claire would accept. (2) That tbe agreement was within tbe statute of frauds, for want of acceptance or receipt of tbe boat by tbe purchasers, or part payment of tbe purchase price.

2. As tbe agreement was a verbal one, tbe sense in which tbe words of contract were used, and what meaning, if any, tbe parties attached to tbe expressions referred to, or either of them, was a question of fact for tbe jury upon tbe evidence. A contract would not be inoperative or void because they used language not technically accurate or exact. It is enough if the parties understood the language used in ■a practical sense, and attached to it a definite meaning, although the court might not have been able to say what was intended by the expressions used. It would have been proper ■to have submitted this question to the jury, that they might ■determine in what sense or with what meaning the expressions, or either of them, 'were used. This is in accordance with Ganson v. Madigan, 15 Wis. 144, 153, and the rule there laid down has been acted upon in subsequent cases. Bedard v. Bonville, 57 Wis. 270; Lego v. Medley, 79 Wis. 220, and •cases cited. This is the rule applicable to written instruments the language of which is ambiguous or of uncertain meaning, and no reason is perceived for denying its application to verbal agreements. It is fair to presume from the assent of the parties that they assigned some practical and reasonably definite meaning to the words, and what meaning it should be left to the jury to determine in view of the entire transaction and surrounding circumstances throwing light upon the question. This view is sustained in Ward v. Lattimer, 2 Tex. 245, with respect to the words “ cash notes ” and the payment of a certain sum of money “in deal.” Reissner v. Oxley, 80 Ind. 580. The rule is said to be that the jury have the right to determine the existence of the parol contract and its extent and limitations." They are to find not only what language was used, but its purport and meaning. 1 Thomp. Trials, § 1108; Copeland v. Hall, 29 Me. 94; Herbert v. Ford, 33 Me. 90, 93; McKenzie v. Sykes, 47 Mich. 294. And it seems to be well settled that the question as to what the parties said and did in making the verbal contract, and what they understood thereby, is single, and cannot be separated so as to refer one part to the jury and another to the court, but in its entirety the question is one of fact. In the present case we think it may be properly said that the evidence tended to show that there was to be-given for the deferred payment of $1,000 paper of that amount that would be bankable or good at the banks of Ean Claire, so that the plaintiff might, if he wished, realize the money at sóme time before it matured.

3. There was sufficient evidence of acceptance and receipt of the steamboat by the purchasers to require that the case be submitted to the jury, and upon which the jury might have properly found that the sale was not within the statute of frauds. The boat was in the river, below the bridge,, and there is evidence that the defendant Garrison, assuming to act for his codefendants, arranged to take, and did have their employee, Smith, take, the boat up above the bridge, hard it out, and block it up in readiness for shipment on the-cars, for the agreed sum of $80, which was paid him by Holm, and engaged him to look after the boat and see that nothing was taken from it. The defendant Smith admits, that the sale was made to him, and to him only, Garrison acting as his agent. Although the vendor’s agent, Talbot, was to assist in managing the lines, and give directions as to the manner of moving the boat and taking it out, it was understood that he or his principal was not to be to any expense on account of it. On the 7th of December afterwards, Garrison and Holm expressed satisfaction with the boat and the manner in which Tiny Smith, hired for the purpose by Garrison, had done his work. The question of acceptance and receipt of the boat was for the jury. Smith v. Stoller, 26 Wis. 671; Amson v. Dreher, 35 Wis. 615. And there was proper evidence for the consideration of the jury on this subject. Amson v. Dreher, supra; Schmidt v. Thomas, 75 Wis. 531.

4. There is no objection to a-recovery on the ground that the sale of the boat was by an assignee, and in part upon ■credit. None but creditors could question the validity of the sale on that account. It follows from these views that the plaintiff was improperly nonsuited.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.  