65 Wis. 118 | Wis. | 1886
Lead Opinion
The following opinion was filed December 1, 1885:
The appellants brought an action in trespass against the respondent for wrongfully taking and converting to his own use certain personal property which they claimed was in their possession in trust, as assignees for the benefit of the creditors of A. P. Morner & Co., and claimed damages in the sum of $600. The defendant answered (1) a general denial of all the allegations of the complaint not afterwards admitted; (2) that at the time of the alleged taking of said property, A. P. Morner & Co. (consisting of A. P. Morner and K. A. Ostergren) were indebted to “ The Brand Stove Company, Limited,” in the sum of $498.83, and that said company obtained an attachment out of the
When the action was called for trial at the circuit the plaintiffs refused to accept the defendant’s offer for judgment, and before offering any evidence on their part moved the court to instruct the jury to find a verdict in favor of the plaintiffs for the sum of $600, the amount claimed in the complaint, on the pleadings in the case. This motion was denied, for the reason that the facts shown by the pleadings entitle the plaintiffs to nominal damages only, unless special damages are shown, ás a tender of the property with costs was made after the action was commenced. To this ruling of the court no exception was taken by the plaintiffs on the trial, and no motion for a new trial was made in the court below by the plaintiffs for this or any other cause. After this decision was made the plaintiffs, in order to maintain their action, offered in evidence the papers purporting to be a voluntary assignment of the property of said A. P. Morner & Oo., bearing date of November 28, 1884, together with the bond and affidavits of the sureties thereto, and all the other papers connected with said assignment. The defendant objected to the receipt of these papers, in evidence on the ground that they showed upon their face that such assignment was void, in not com
The plaintiffs then further offered to show a list of the property described in the complaint and the appraised value of the same, by introducing the appraisement of the same contained in the attachment proceedings in the case of The Brand Stove Co. v. A. P. Morner and K. A. Ostergren, showing the appraised value of such property to be the sum of $564.50. Plaintiffs also offered to show that the value of the goods taken was $564.60, and also that the property was taken by the defendant out of the possession of the plaintiffs on the 19th of January, 1885; that such property has remained out of the possession of the plaintiffs ever since and in the possession of the defendant; that the plaintiffs took possession of the property described in the complaint under the assignment as a part of the assets of the assignors; that the same was described in the inventory attached to the assignment ; and that before the defendant took possession of said property he was notified by the plaintiffs that they were in possession, claiming title to the same under the assignment mentioned. All the evidence offered was excluded upon the objection of the defendant, and exceptions duly taken by the plaintiffs. The exclusion of this evidence is assigned as error by the appellants. No other evidence being offered, the defendant had a verdict and judgment for costs thereon.
The plaintiffs, in their complaint, alleged that they are owners in trust under the assignment offered in evidence. There is no claim that they had any right to the property or the possession thereof except as assignees of said A. P. Morner & Co. The answer of the defendant denied their title as assignees as well as the wrongful taking of the property by the defendant. The first answer of the defendant denies each and every allegation of the plaintiffs’ complaint, except as afterwards admitted by the further answers.
Two objections are relied upon by the learned counsel for the respondent in this court to sustain the ruling of the court in rejecting the evidence of the assignment papers: (1) That only partnership property was assigned; and (2) that one of the sureties on the bond failed to swear that he was a freeholder.
This court, in the case of Rumery v. McCulloch, 54 Wis. 565, held an assignment made by a partnership of partnership property only a valid assignment. It does not appear in that case that any exception was made to the assignment on the ground that it assigned only partnership property; but the rights of the parties to the action depended upon the validity of the assignment, and the assignment was held valid. The language quoted by the counsel for the respondent from the opinion in the case of Alkan v. N. H. Ins. Co. 53 Wis. 145, had Uo reference to the question of a partnership assignment. In Maryland it has been frequently held that a voluntary assignment for the benefit of creditors, made by a partnership, in which there is a stipulation that the creditors who avail themselves of such assignment shall, upon receipt of their proper proportion of the proceeds of the assigned property, release their claims against the assignors, is void, unless all the property of the assignors, both partnership and individual, is assigned for the benefit of their creditors. Citizens’ Ins. Co. v. Wallis, 23 Md. 182, and cases their cited. In the absence of any requirement in the assignment that the creditors upon availing, themselves of the benefit of the .assignment shall
The second objection taken to the assignment it seems to us is well taken, and is fatal to the validity of the assignment. Sec. 1694, B. S., declares that all voluntary assignments for the benefit of creditors shall be void as to the creditors of the assignor, unless executed with the formalities mentioned in said section. The section, among other things, requires the assignee, before taking upon himself the trust under the assignment, to deliver to the county judge or court commissioner of the county in which such assignment is made, “ a bond, in a sum not less than the whole amount of the nominal value of the assets of the assignor,
In the last case cited this court held that the affidavit of the surety should not only show that he was worth a certain sum therein named in property within this state, etc., but also that he was a freeholder of the state; and that when the affidavit of the surety did state that he was a freeholder of the state, such fact was conclusive, and the assignment could not be attacked by showing that such surety was not in fact such freeholder, unless the assignee was guilty of a fraud in procuring the surety to make a false statement in regard to that fact. It was said in that case: “ The statute provides that the sureties shall be free
Ve are not prepared to say that the case of Klauber v. Charlton, supra, was not properly decided, and ought to be overruled. So far as we have been able to ascertain from
It is further claimed by the counsel for the appellants that the defendant is not in a position to attack the validity of the assignment, as it is not shown that he was a creditor of the assignors, or was acting for them. His answer sets up that he took the property on behalf of a creditor of the assignors upon an attachment. That was an issue in the case, and the plaintiffs based their right to recover the property on the sole ground that they held it as the assignees of the debtors against whom the attachment issued. Having undertaken to show their right to the property for which the action was brought against the sheriff, who had taken the same on an attachment against their assignors, it was not error to exclude the evidence of the assignment when it appeared that it was void as against the creditors of the assignors. Had the plaintiffs denied in court the allegation that the defendant took the goods in controversy by au
It is also contended that because the answer set up a tender of a release of the property with costs after suit brought, and tendered the plaintiffs a judgment for six cents damages, and the costs, and a release of the property, the defendant is estopped from denying the title of the plaintiffs to the property in suit. Ye think, as the plaintiffs refused to accept the offer made by the defendant in his answer, and to take judgment in accordance therewith, they cannot now invoke such tender and offer of judgment as an estoppel on the defendant to deny their title. The rule of the statute upon a tender of judgment by the defendant which the plaintiff refuses to accept should apply to a case of this kind. That rule is that if the offer be not accepted “ the offer is deemed to be withdrawn, and cannot be given in evidence or mentioned on the trial; and, if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay costs to the defendant from the time of the offer.” R. S. sec. 2789. The plaintiffs, having failed to recover any judgment, the defendant was entitled to recover his costs incurred after the tender of judgment; and, as we understand it, the judgment in favor of the defendant for the costs was only for such costs as accrued after the offer of judgment was made.
Upon the hearing of the appeal in this case the respondent moved to dismiss the appeal for the reason that before
By the Court.— Ordered accordingly.
Upon a motion for a rehearing, counsel for the appellants cited further, to the point that the assignment was not void as to the defendant, who was not a creditor: Geisse v. Beall, 3 Wis. 367; Fargo v. Ladd, 6 id. 106; Remington v. Bailey, 13 id. 332; Jones v. Lake, 2 id. 210; Eaton v. White, id. 292; La Crosse & M. R. Co. v. Seeger, 4 id. 268; Schettler v. Brunette, 7 id. 197; Reynolds v. Vilas, 8 id. 471; Clemens v. Clemens, 28 id. 651; McCourt v. Bond, 64 id. 596; Burrill on Assignments, 494.
Rehearing
The following opinion was filed February 2,1886:
The motion for a rehearing raises no new questions. The point was distinctly made by the appellant on the hearing of the appeal that the plaintiffs should have recovered notwithstanding the court properly held the assignment void as to the creditors of their assignors; and this court answered that objection by showing that the evidence offered to sustain the assignment was, in the first place, not offered with a view of establishing their right to recover against a person not representing a creditor
By the Court.— The motion for a rehearing is denied, with $25 costs.