29 Wis. 2d 649

Boehck Construction Equipment Corporation, Respondent, v. O’Brien and another, d/b/a Racine Excavating & Sewer Contractors Partnership, Appellants.

January 7

February 1, 1966.

*650For the appellants there was a brief by Konnak & Constantine of Racine, and oral argument by Charles M. Constantine.

For the respondent there was a brief and oral argument by Thomas J. Bergen of Milwaukee.

Wilkie, J.

The major issue presented on this appeal is whether $4,000 is the reasonable value of the crawler within the meaning of sec. 122.221 (1), Stats.1 Although *651this section has been on the books since 1943, this court has not yet had the opportunity to consider what is meant by “reasonable value.” The trial court recognized three possibilities — the price bid at the sale, the wholesale price, and the retail sales value — and concluded that the reasonable value is “that value received from the sale at the time of the auction, unless upset by testimony.”

The trial court’s view of how reasonable value should be determined is sound. The court must start somewhere. The wholesale price and the retail sales price are not trustworthy indicators since they obviously reflect prices which, by definition, are either favorable to the original seller or buyer. Since the price received at the sale should theoretically be more neutral, particularly if bidding has been brisk, this figure should be used as a starting point.2

Thus, the next consideration is whether the appellants presented evidence demonstrating that the bid price of $4,000 was unreasonable. Relying on testimony of John Dykstra, who was also in the excavating business, that the machine was worth $5,000 to $6,000, and pointing out that the machine was bought on April 27th for $6,000, that it had been used for a total of only thirty hours be*652fore repossession on June 12th, and that it had been properly maintained, appellants contend that the foreclosure sale price of $4,000 on July 7th, some eighty days after the actual delivery on April 18th, is patently unreasonable. However, the test is whether the trial court’s finding is against the great weight and clear preponderance of the evidence.3

The respondent’s evidence countered that of appellants:

First, there was testimony by Thomas Pares, vice-president of respondent, and Harrison Duffy, one of respondent’s salesmen, that the crawler was worth $4,000.

Second, there was testimony to the effect that the value of excavation equipment in any given July would be less than in the spring when the demand for such machines is the greatest.

Third, there was testimony that the addition of a backhoe attachment, at appellants’ request, operated to make the machine a very specialized piece of equipment for which there was no ready market. This was further borne out by the fact that the crawler had not been resold by January 25,1965, the date of trial.

We conclude that the trial court’s finding was not against the great weight and clear preponderance of the evidence. In any event, it is difficult to give appellants the benefit of any doubt in regard to the value question for the reason that they failed to appear at the sale to protect their interests despite the fact that they received notice over and above that required by law. Having chosen to lie in the weeds at that time they are not in the best position to now complain.

Also claimed as error is the refusal of the trial court to allow appellant Michael Glaub to testify as an expert on the value question. In view of Glaub’s untimely ad*653mission that “I wouldn’t say I was an expert on . . . [these machines]” while his counsel was attempting to lay a proper foundation for his expertise, the trial court did not err in barring his testimony.

By the Court. — Judgment affirmed.

Boehck Construction Equipment Corp. v. O’Brien
29 Wis. 2d 649

Case Details

Name
Boehck Construction Equipment Corp. v. O’Brien
Decision Date
Feb 1, 1966
Citations

29 Wis. 2d 649

Jurisdiction
Wisconsin

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