American Thresherman v. Citizens Bank of Anderson

154 Wis. 366 | Wis. | 1913

Lead Opinion

Tbe following opinion was filed April 29, 1913:

EeewiN, J.

Tbe only questions necessary to be considered upon this appeal are (1) whether tbe findings are supported by tbe evidence; and (2) whether tbe findings support tbe judgment.

We have examined the record with care and are convinced that it cannot be said that the clear preponderance of the evidence is against the findings. The evidence is ample to sustain the finding that the intervener, Citizens Bank of Anderson, was the owner of the property at the time of the attachment. It appears clearly from the evidence that there was an agreement between the defendant and the intervener to the effect that the intervener.would discount drafts drawn for the purchase price of cars when sold with the bill of lading attached, the drafts to be payable to the order of the in-tervener, it to pay ninety per cent, of the drafts to defendant, and bold ten per cent, to cover interest at six per cent, on the amount of money paid, and use the balance of the ten per cent, to cover any expense that the intervener might be put to in fully realizing upon the drafts, and that if any balance remained of the ten per cent, reserved it should be credited on indebtedness of defendant to intervener. Tbis business system, the evidence shows, was followed in the instant case, — the draft was drawn for the purchase price of the ears and, with the bill of lading attached, delivered to the inter-vener bank, ninety per cent, thereof paid to defendant and ten per cent, held in accordance with the agreement above mentioned. The evidence shows that it was the custom of the intervener in such dealings to deduct ten per cent, of the face of drafts to cover interest, collection charges, and any expense incurred in handling such transactions; that the present transaction was carried out pursuant to such agreement. The cars were delivered to the railway company for shipment, a bill of lading issued to defendant as consignor, cars consigned to defendant as consignee, notify Hokanson Automobile Company, the draft for purchase price drawn on Hokan-son Automobile Company, payable to the order of intervener, and the draft and bill of lading discounted by the intervener bank, and delivered to it. The intervener indorsed the draft to the Bank of Wisconsin for collection. The amount of the draft less ten per cent, was credited by intervener to defendant and the ten per cent, held to cover interest, costs, and charges which might be incurred, and the balance, if any, to be credited to defendant. The evidence clearly shows that the title to the property described in the bill of lading passed to the intervener. We think there is sufficient evidence to support a finding that there was no intent to defraud creditors. All the facts set forth in the findings respecting the manner in which the business was done under the agreement between the defendant and the intervener and the uniform course of business of the intervener prior to May, 1911, are well supported by the evidence.

Point is made by appellant that the place of performance of the contract was Madison, Wisconsin. While it is true that the arrangement contemplated the delivery of the cars at Madison, Wisconsin, the contract between the defendant and tlie intervener by which the title to the property passed to the intervener was made in Indiana. But even if the contract were made in Wisconsin we cannot see that it would change the result of this appeal.

It is also' argued hy appellant that the intervener was simply the agent of defendant to collect the purchase price of the automobiles from the Hokanson Automobile Company. If this were so there would be force in some of counsel's argument. But since we agree with the court below that the title to the property passed to the intervener in Indiana, it becomes unnecessary to consider'much of counsel’s argument.

Counsel for appellant further argues that there remained in the possession of the intervener some portion of the ten per cent, reserved after paying interest, costs, and charges, and that amount is subject-to the claim of plaintiff. But under the agreement and transfer -of the property nothing remained which belonged to defendant. If there was any surplus it was by the terms of the agreement to be credited upon the indebtedness of defendant to the intervener, which at the time of the transfer was about $7,000.

Under the findings supported by the evidence we aTe of opinion that the title to the property in question passed to the intervener, and that the appellant has shown no right to the property or money in controversy. 36 Cyc. 218; First Nat. Bank v. Mt. Pleasant M. Co. 103 Iowa, 518, 72 N. W. 689: Shaffer v. Rhynders, 116 Iowa, 472, 89 N. W. 1099; Temple Nat. Bank v. Louisville C. O. Co. (Ky.) 82 S. W. 253; Paxson Bros. v. Warfield, 6 Ga. App. 315, 65 S. E. 34; Am. Nat. Bank v. Henderson, 123 Ala. 612, 26 South. 498; Leinkauf B. Co. v. Grell, 62 App. Div. 275, 70 N. Y. Supp. 1083.

It follows that the judgments appealed from are right and must be affirmed.

By the Court. — Judgments affirmed.

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Dissenting Opinion

Tbe following opinion was filed May 2, 1913:

Maeshall, J.

(dissenting). My brethren do not seem to have given proper effect to tbe rule tbat, where a conclusion of fact, made by a trial court, results from mere inference from circumstances, admitted or clearly established, it is not entitled to any very great, if any superior, weight over the inference which any member of the appellate court may draw from the same circumstances as detailed in the record. Why is a trial judge’s inference as to the real purpose of the Motors Company'and its bank in resorting to the peculiar method which it did for getting the former’s product into this state and the equivalent in money out of it, defying plaintiff to realize on its claim, except at the company’s pleasure, superior to the inference which any one of us may draw here ? The trier did not have any advantages which we do not possess. The undisputed circumstances raised a question which appeals to ordinary common sense in the light of experience in life, as to what the real intention was. Certainly, the training here, need not defer on a question of that kind to the trial judge.

There is no rule of more consequence in promoting speedy,, economical, judicial, and just settlement of controversies, than the one that a trial judge’s findings as to matters of fact are not disturbable on appeal unless contrary to the clear preponderance of the evidence and,- — in 'the judgment of the writer, it is the doctrine of the court that all reasonable doubts should be resolved in favor of such findings in order to fully vindicate that they are due to prevail unless clearly wrong. But, like all good rules jt may be carried too far, resulting in injustice prevailing, unless its limitations are carefully kept in mind. It seems to me that has not been done in this case.

To give proper point to what I have said, it is necessary to portray the situation in my own way. It does not appear fairly from the findings. Many vital matters, though requested to be. included therein by counsel for appellant, were omitted. That, probably, is attributable to eoun-,sel for the prevailing party having been permitted to do the trial judge’s 'work of drafting his findings. Not until that bad practice shall have been eliminated and trial judges save themselves from the burden of work which the Code does not require of them and put' the saved labor into framing, in plain concise language, their conclusions as to the facts and the law, as the Code contemplates shall be done, will the closing of controversies' tried by the court have the appropriate judicial air about them.

Here are the circumstances appearing by the record, but not found in any satisfactory way, in the findings:

February 11, 1911, the Motors Company, a foreign corporation located' in Indiana, being in financial difficulty, proceedings were had between it and its creditors, practically all of the latter joining except plaintiff, resulting in a reorganization plan enabling the company to go on with its business, undisturbed .by any of the nonparticipating creditors. Upon failing to secure an independent arrangement' as to its claim, plaintiff notified the Motors Company that April 1, 1911, unless such claim should be sooner settled, it' would improve the first opportunity afforded of collecting it by attaching the Motors Company’s goods, shipped into this state. Thereafter the Motors Company continued its general business, one Waters, holding the office of president, with full-knowledge of all the facts aforesaid. He arranged with the Citizens Bank of Anderson, Indiana, to take the Motors Company’s draft's with bills of lading attached, representing automobiles in course. of delivery to customers, and advance ninety per cent, thereof, retaining ’the residue subject to its charges and the result of forwarding the drafts for 'collection, the residue of this ten per cent., at the option of the bank, to be applied on its indebtedness. Pursuant to this arrangement the Motors Company made a shipment of its goods to itself as consignee at Madison, Wisconsin, for delivery there to the Ilokanson. Automobile Company upon its paying the draft with bill of lading representing tbe purchase price. The bill of lading, without any notation thereon as to negotiability, attached to a draft on the Ilokanson Company, at Madison, Wisconsin, was discounted at said Citizens Bankj as such bank claims, or was deposited with it for collection. The draft was for $2,661. The bank advanced thereon $2,395, and placed the balance in a certificate of deposit' in its own favor to await return of the proceeds of the collection. The Citizens Bank forwarded the same with bill of lading attached, the draft properly indorsed by it, to the garnishee bank for collection at Madison.. Upon arrival of the goods and the draft at the destination and before presentment to the drawee, the property was attached, at the suit of plaintiff, and the Bank of Wisconsin, the collecting agent at Madison, was garnisheed. Thereafter, by assent of all interested, the Ilokanson Company paid the draft and the garnishee remitted all but $600, which it deposited with the Central Wisconsin Trust Company in lieu of the property attached, to await the result of the litigation. The garnishee deducted from the residue of the collection $10. for attorney’s fees and $5 for exchange, being all of the expenses of the Citizens Bank in respect to the matter, leaving $2,046, the amount remitted. Upon receipt thereof the Citizens Bank placed the same in a certificate of deposit and held it with the other certificate subject to final termination of the litigation.

Now, to my mind, the facts stated present a very plain case of transfer of property with mutual intent between the parties to the transaction to delay a creditor in the collection of its claim. I cannot see any Other explanation of the peculiar departure from the ordinary business methods of collecting for goods sold, by means of a draft drawn by the seller on the buyer and sent with bill of lading through the seller’s bank for presentation to the buyer. The subterfuge of going through the form of a sale of the draft to the local bank and it advancing part of the purchase price and setting aside the balance in a certificate of deposit to await results, ought not to deceive any one. If there were no ulterior motive, why did the Citizens Bank set aside ten. per cent, of the draft to insure it against contingencies ? What difficulties could have been anticipated except just such as occurred in this case? The explanation that this ten per cent, was in part to cover six per cent, collection charges, and made in such a way as to leave the impression that six per cent., flat, was meant, made a bad-looldng situation look worse. Counsel appreciated that on the argument and was moved to confess that what was meant was at the rate of six per cent, for the time intervening between the advance made on the draft and realization thereon which, manifestly, could only be a small amount as the time required to make the collection, in the ordinary course of things, would be but a few days. The explanation that the draft was handled the same as others, does not help matters. The fact, if it be a fact, that the Motors Company was accustomed to do its business that way so as to carry on its large business and pay the few creditors who did not choose to participate in the plan for avoiding a receivership, does not evert tend to show that the ulterior purpose did not exist, fatal to respondent’s ease. Both parties to the transaction of so handling the Motors Company’s property as to facilitate the sale of it in this state and avoid payment of appellant’s claim, appreciated that some scheme to that end was essential to circumvent appellant’s vigilance.

I think the court should draw the natural inference which the circumstances in this case so forcibly suggest, — do it quite as freely as if the trial court had not acted in the matter. If that were done I cannot doubt but that the result would be a reversal of the judgment.

BaeNes, J., also dissents.

A motion for a rehearing was denied, with $25 costs, on October 7, 1913.