61 Wis. 629 | Wis. | 1884
This action was brought to recover the value of a quantity of personal property which the plaintiff claimed had been unlawfully taken from his possession and. converted by the defendant. ( The defendant justified the taking of the goods as sheriff of Milwaukee county 'by virtue of an attachment issued against the property of one F. W. Miller, in an action between one George Dyer, plaintiff, and F. "W. Miller, defendant, and alleges that the goods taken were the goods of said Miller, and not the goods of the plaintiff. A trial was had upon the merits in the circuit
The defendant having moved for judgment in the court below upon the special verdict, and no motion having been made in that court to set aside the findings of the special verdict on the ground that they were not sustained by the evidence, this court will not, upon this appeal, look into the record for the purpose of determining whether such findings are sustained by the evidence. The findings of the special verdict in such case must be taken as sustained by the evidence, and the only questions to be inquired into upon an appeal from the judgment are the errors, if any, arising upon the trial in the admission or rejection of evidence, in the instructions of the court to the jury, or otherwise in the conduct of the trial. Kirch v. Davies, 55 Wis. 287; Hayward v. Ormsbee, 11 Wis. 3; Wheeler v. Pereles, 43 Wis. 341. The learned counsel for the appellant, in his brief and argument, recognizes this state of the case; he does not raise any question upon the evidence, and only assigns as errors certain instructions given by the court to the jury.
The only instruction given to the jury by the learned judge to which any exception is taken by the counsel for the appellant and assigned as error in this court, is the following: “I further instruct you, gentlemen of the jury, that the bill of sale in this case must not be adjudged fraudulent as to. creditors solely on the ground that it was not founded on adequate consideration, even if you should so find; but you.
Taking the two instructions together and there is no error. The instruction excepted to was justified under the statutory rule that fraudulent intent is a question of fact and not of law. Sec. 2323, K. S. 1878; Hyde v. Chapman, 33 Wis. 391, 399. I have examined the charge of the learned circuit judge in this case, and am satisfied that it submitted the case to the jury fully and fairly, and not in a way which tended to the prejudice of the defendant; and although, from a careful reading of the evidence as it appears in the record, we might feel inclined to find fault with some of the facts as found by the jury, we do not think such findings can be attributed in the least to the instructions given by the learned circuit judge.
The learned counsel for the appellant claims that the circuit court erred in overruling his motion for judgment upon the'special verdict. This contention on the part of the appellant is based upon that part of the special verdict which finds that the bill of sale made by Miller to the plaintiff was made by him when' he knew he was insolvent,- and with intent to prefer the plaintiff over his other creditors. The second and sixth questions answered by the jury are the basis of the defendant’s claim for judgment in his favor. The questions are as follows: (2) “ Did the vendee, Anstedt, know or have good reason to believe that the vendor, Miller, was insolvent at the time he received the bill of sale from him?” (6) “Was the bill of sale of November 10, 1883, made by said Miller knowing that he was insolvent, and-with intent to prefer plaintiff over his other creditors?” The jury answered both these questions in the affirmative.
It is contended by the learned counsel for the appellant that these findings of fact by the jury render the sale void as to other creditors, under the provisions of ch. 349, Laws of 1883. Sec. 1 of said chapter reads as follows: “Any and
It is contended by the learned counsel for the appellant that this law renders every sale made by an insolvent debtor to one of his creditors, in payment of an existing debt, void, whether such sale be followed by an assignment or not; and he bases that construction of the act upon the words “ and in contemplation thereof or of insolvency,” and especially upon the words “or of insolvency.” The learned circuit court held that this statute only made sales, etc., void by its provisions when such sales were, in fact, followed by an assignment by the debtor for the benefit of his creditors within sixty days after such “ sale,” etc. We are clearly of the opinion that the learned judge placed the proper construction upon this statute. To us it is apparent that the whole purpose of the act was to further regulate and control assignments made by a debtor for the benefit of his creditors; and that,'where such an assignment was made,
The learned counsel for the appellant admits that such would be the necessary interpretation of the statute were it not for the 'words “or in contemplation of insolvency; ” but he insists that, in order to give any force to these words, it must be held that the legislature meant to make every sale, etc., void when such sale is made by a debtor who knows of his insolvency to a creditor who also knows that fact. We think these words can very properly be construed to mean that when such “ sale,” etc., is made by the debtor in contemplation of his availing himself of the benefits of the state insolvent law (ch. 179, K. S. 1878); and that such sales, etc., would be void if he applied for a discharge of his debts under that law within the time limited by the act. This court held that the words “ with a view to insolvency,” in sec. 1, eh. 87, Laws of 1857, evidently had reference to the design of the insolvent debtor to avail himself of the benefits of the statutes in regard to insolvent debtors; and so, in the present statute, the words “ in contemplation of insolvency ” may be construed to refer to an intention on the part of the debtor to avail himself of the benefits of the insolvent laws of the state, and if, after making such sale or other disposition of his property under the circumstances set out in the statute, he afterwards applies for the benefits of such insolvent law, such sale, etc., might be held void, and the property so sold might go into the hands of the assignee for the benefits of all his creditors alike. But on this point we do not wish be understood as making a definite decision.
By the Court. — The judgment of the circuit court is affirmed.