Berge v. Kittleson, 133 Wis. 664

Berge v. Kittleson

133 Wis. 664 | Wis. | 1907

Timlin, J.

The action was tried by the court, and, except the first, the errors go to the sufficiency of the evidence to uphold the findings.

The first assignment of error is to the effect that the trial *666court erred iu admitting evidence under tbe following circumstances: Tbe alleged principal debtor, Kenner, was, up to tbe time be left, engaged in delivering milk from several cows owned by bim to a creamery, and bad made sucb delivery up to November 13tb, when be transferred bis cows to tbe appellant, who* continued tbe same method of delivery during tbe remainder of tbe month of November and received for tbe whole month’s deliveries $81.88. In tbe endeavor to ascertain what part of this was the proceeds of Kenner’s deliveries tbe appellant was asked what amount be received for tbe first thirteen days, and be claimed be did not know. Whereupon: “Q. We don’t want it exact, Mr. Kittleson, but we want your opinion, your judgment on tbe matter.” Objection was made and overruled, and tbe witness said: “About $25 to $30.” Another witness connected with tbe creamery was asked, and answered under .objection', what amount appellant received for milk delivered during November, and also testified that what be got for deliveries up to tbe 13th would be more than half of this amount. Tbe garnishee defendant was asked to tell what be bad in mind and referred to when be made certain statements, and an objection to this question was sustained. We find no reversible error in either of these rulings. It is neither opinion evidence-nor “guesswork” for a witness to give an estimate of what proportion of a given sum was derived from one source rather than another. Tbe objection to tbe question calling upon tbe witness to tell what be bad in mind and referred to when be made a certain statement unambiguous in itself was under tbe circumstances properly sustained.

We are unable to say that tbe findings of tbe trial court are not supported by tbe evidence. Tbe plaintiff, tbe defendant Kenner, and tbe garnishee lived in tbe bouse of tbe garnishee — Kenner as tenant and tbe plaintiff as employee of Kenner. There was a marriage contract between plaintiff and Kenner, for tbe'breach of which occurring prior to No*667vember. 13, 1905, the plaintiff later recovered judgment against Kenner. There is evidence tending to show that prior to the date last mentioned the appellant knew the plaintiff had threatened to institute legal proceedings against Kenner, and knew their relation and that the plaintiff had threatened or attempted suicide. On November 13, 1905, the appellant and Kenner went to the village of Mt. IToreb and there canceled Kenner’s lease of the appellant’s farm, and Kenner gave a bill of sale to the appellant of the property in question, which was at that time on said farm. Ken-ner and the appellant parted at Mt. Vernon and from there the appellant walked home. Kenner went to Verona, left his horse in a livery stable, executed a bill of sale of all his remaining property to his brother, and has not since been heard from. Appellant came home and saw the plaintiff taking care of the cattle and property of Kenner and did not inform her that he had purchased the same, at least for some time.

We consider the evidence sufficient to support the finding that Kenner, by the transfer in question, intended to hinder, delay, and defraud the plaintiff, and that the appellant knew of that intent and aided in carrying it out. The bill of sale from Kenner to the appellant purported to convey seven cows, one horse, three steers, twenty-seven hogs, two sets of harness, one single harness, one McCormick binder, and some minor-articles. The appellant paid therefor $47.0 in cash and released the amount of rent due from Kenner under the lease, being $94, and Kenner also transferred to the appellant the amount due upon milk deliveries above mentioned up to-November 13th.

It is claimed by the appellant that a large part of the property in question was exempt property, and that part of' the money received from appellant by Kenner was applied by the latter to the payment of bona fids debts, and that the effect of these two facts is to render the transfer to appellant valid, overcoming all evidence tending to show fraud, because. *668to the extent that the property was not exempt the proceeds of the alleged sale were properly used by Ilenner, which indicates preference of creditors, not fraud, and to the extent that the property was exempt there conld be no fraud predicated of its transfer. But the fact that Kenner paid other creditors out of the proceeds of the sale to appellant does not necessarily or as matter of law negative intent to hinder, delay, or defraud the appellant. It might he otherwise were the transaction a straight act of preference. • These facts were proper to he considered in negation of fraudulent intent, hut were not conclusive upon that question. Avery v. Johann, 27 Wis. 246. Of the property transferred to the appellant by Kenner, if we assume that the latter had an actual residence in this state and that he had no other property, the horse, ten of the twenty-seven hogs, and two of the seven cows were specifically exempt under subd. 6, sec. 2982, Stats. (1898). There is no specific exemption of the harness or binder, but they may be included in and make up farm utensils exempt to an amount not exceeding $200 in value. The hinder and three sets of harness therefore came under the law which requires selection by the debtor to the same extent as the articles in subd. 8 of the same section require selection. Bates v. Simmons, 62 Wis. 69, 22 N. W. 335; Zielke v. Morgan, 50 Wis. 560, 7 N. W. 651; Bong v. Parmentier, 87 Wis. 129, 58 N. W. 243. There was no selection made at any time prior to or during the trial of the action. The horse, ten of the swine, and two of the cows required no selection in order to enforce the claim of exemption if they had been transferred by the debtor uncommingled with other property not exempt. Carhart v. Harshaw, 45 Wis. 340. But, where specifically exempt items ctf personal property are transferred in fraud of creditors with a larger amount of property which is nonexempt by indivisible or un-apportionable act or instrument of transfer, there must also be selection on the part of the debtor or some person authoi*-ized by him. Otherwise the court will be unable to accurately *669determine the cause. Eor illustration: Of seven cows or seven borses transferred one might be worth $300, one $200, and the other five varying in value from $30 to $100. Which two shall be considered exempt where no selection is made ? To what extent should the fraudulent transfer be avoided? In the case at bar there was, as has been said, no selection, and there was furthermore no such definite and certain presentation of the value of particular items and of the value of the remaining property of Kenner as would enable the trial court, even if selection had been made, to properly separate the proceeds or value of the animal identified as exempt from the proceeds or value of the animal not so identified.

It follows that the judgment of the court below must be affirmed.

By ihe Gourt. — The judgment of the circuit court is affirmed.