It is urged that the complaint in the attachment suit “alleges a cause of action esa delicto,” and hence that the attachment was improvidently granted, and no justification in the hands of the sheriff. The substance of the complaint is stated above. It is to the effect that Lomas converted to his own use the moneys and notes he received as agent. There is no allegation that such conversion was wrongful, unlawful, or fraudulent. The evidence in that ease probably tended to prove that such conversion was tortious. But in such cases it is always competent to waive the tort, and sue on the contract. Walker v. Duncan, 68 *646Wis. 624. This is just what was done. The contract between the plaintiff- herein and Lomas was in writing-, dated December 10, 1885, and is to the effect that the plaintiff agreed to furnish to Lomas, on the conditions therein mentioned, the machines therein described, at the respective prices therein mentioned, “ net,” payable by cash or good indorsed notes, taken of farmers, to be indorsed by Lomas, or to contain a true property statement, showing each purchaser to be worth $1,000 over and above all liabilities and exemptions; and in case any of such notes proved to be un-collectible, Lomas therein agreed to make them good to the plaintiff, and to settle for all machines ordered by November 1, 1886, and to pay for all repairs sold, in cash, at such time of settlement. Said machines were to be delivered by the plaintiff on the cars at Milwaukee, and Lomas was to pay all freight and charges on the same. The machines were to be sold in Grant county only. A discount was to be allowed by the plaintiff on all cash paid by October 1st; and if the whole account was then paid in cash, ten per cent, discount was to be allowed. Lomas therein agreed to settle for all machines, drawing notes to the order of the plaintiff, and on their blanks, and to sell as per plaintiff’s printed warranty, so that the test would be a matter of fact, not of choice. The plaintiff therein agreed to furnish all posters, circulars, and pamphlets free of charge, save the transportation on the same, and Lomas was to distribute the same. No deductions or promises were to be allowed save those mentioned in that contract; and the plaintiff was not to be held liable — in case of fire, or should the demand exceed the production — in case it could not fill orders sent it. The contract also contained this clause: “Any machines, extras, or notes, taken for machines on hand, are such that the title and right of ownership do not pass from the . . . [plaintiff] until this account is paid in full.” The plaintiff also therein reserved “ the right to revoke ” the *647contract at any time it deemed itself insecure, and take possession of said machines and extras.
The court charged the jury, in effect, that whatever machinery Lomas had received from the plaintiff under the contract, and not paid for at the time of the attachment, was, as between it and Lomas, the property of the plaintiff; that the proof showed that the contract was not filed before the attachment, as required by sec. 2317, E. S. That section provides that “no contract for the sale of personal property, by the terms of which the title is to remain in the vendor, and the possession thereof in the vendee, until the purchase price is paid or other conditions of sale are complied with, shall be valid as against any other person than the parties thereto and those having notice thereof.unless such contract shall be in writing, subscribed by the parties, and the same or a copy thereof shall be filed in the office of the clerk of the town, city, or village where the vendee resides,” etc. Exception is taken because the court, in effect, submitted to the jury the question whether, at the time of levying the attachment, the defendant knew of, or had reasonable cause to believe in, the existence of such contract, or that Lomas was not at the time the owner of such machines. The court also charged, in effect, that, in making the attachment, the sheriff acted, in a sense, as the agent of the Milwaukee Harvester Company, and any notice the company, or its authorized agent in the matter of said suit, might have had at the time of the attachment, would be notice that would bind the defendant as such sheriff. There can be no question but what the charge was sufficiently favorable to the plaintiff, if the contract was “ for the sale of personal property ” upon the condition named in the section, and we are clearly of the opinion that it was.
The contract being of the nature indicated, and not having been filed as required by the statute, the title to the seven Rawson machines mentioned must be conclusively *648presumed to have been in the vendee, Lomas, who was still in possession at the time of the levy of the attachment thereon in favor of his creditors, having no such notice as is mentioned in the section. Kimball v. Post, 44 Wis. 476. The evidence sustains the verdict of the jury, and the verdict conclusively negatives the existence of any such notice.
By the Court.— The judgment of the circuit court is affirmed.