75 Wis. 624 | Wis. | 1890
We think it is very clear that, upon the evidence introduced in this action, as between Knight and Bernard Lynch, no debt nor-sum of money was shown to be due upon said contract from Knight to Bernard Lynch. On the face of the contract, and by the terms thereof, there is clearly nothing due to Bernard, and we find nothing in the evidence which tends to prove that there has ever been any transfer of the money' due or to become due on said contract from Elizabeth Lynch to Bernard Lynch, and in the absence of any such evidence the money must be due to Elizabeth and not to Bernard. The only evidence offered .which has any tendency to show any such transfer of interest in the contract to Bernard is a written request and a receipt, of which the following are copies:
“Ashland, WiscoNsiN, January 6th, 1888. “ To John M. Knight: Any moneys paid by you heretofore or hereafter to Bernard Lynch, my husband, on account of the logging contract I have with you for cutting the timber on section 24, township 17, range 8, Bayfield county, Wisconsin, is and shall be just the same as if paid to • me; and you are authorized to settle with him for all matters connected with that logging contract.
“ [Signed] . Elizabeth Lynch.” °
“Ashland, Wisconsin, January 30th, 1888.
“ Received of John H. Knight eighteen hundred and one dollars and eleven cents, on account of logging contract for cutting timber on lands in section 24, township 47, range 8.
“ [Signed] Bebnahd Lynch.”
These papers are entirely consistent with the claim of
Upon the testimony in this record it seems to us very clear that it is not shown that Bernard Lynch could successfully have maintained an action to recover from Knight the money due and unpaid by him on said contract. Ordinarily, this fact would defeat the action of the creditors of Bernard in recovering against Knight as garnishee of Bernard.
In order to entitle the creditor of Bernard to recover in a case where he himself could not recover against the garnishee, it must be shown that the transaction between the garnishee, Knight, and Elizabeth, the wife of Bernard, was on their part intended to hinder, delay, or defraud the creditors of Bernard, or that the .contract was made for the use and benefit of Bernard. These questions are clearly questions of fact upon the evidence, and not questions of law. That there was any intent to defraud the creditors of Bernard is certainly far from being so clear as to justify a court in determining it as a question of law, especially under our statute, which declares that the question of intent to defraud shall be a question of fact and not of law. Sec. 2323, R. S. The evidence shows that Bernard was entirely willing to have the contract for the logging stand in his name and for his benefit, as it was originally made, and that the change of the contract, making the contract with his wife, was because Knight was not satisfied to have it remain as a contract with Bernard. Clearly, the court erred in directing a verdict on the ground that the contract was made with intent to hinder, delay, or defraud the creditors of Bernard Lynch,
In any view of the evidence, it seems very clear' to us that the plaintiff failed to establish by the evidence facts which entitled him to have a verdict directed in his favor. For the error in directing a verdict for the plaintiff, the judgment must be reversed.
By the Court.- — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.