94 Wis. 326 | Wis. | 1896
It appears from the foregoing statement that the defect in the evidence which necessitated reversal upon the former appeal was supplied upon the second trial; hence the case is now presented upon the merits. The verdict was evidently directed upon the ground that the evidence conclusively showed that the transfer by Wells to the plaintiff was, in legal effect, an assignment for the benefit of certain of the creditors of Wells, and was void under the rule laid down in Winner v. Hoyt, 66 Wis. 227, and subsequent cases. In this conclusion we think the circuit court was entirely right. The evidence of the plaintiff himself showed that he went to Wells to collect or secure two claims against Wells which were in his hands, amounting to about $1,100; and that Wells, being unable to pay, made and delivered to plaintiff an instrument which was in form an absolute bill of sale of the horses, with the understanding that it was given as security simply for the payment of the two claims, and that plaintiff was to enforce the security, if necessary, and settle between the parties. Here was plainly “ a trust, a trustee, creditors, and cestui que trust who can compel an enforcement of the trust.” Maxwell v. Simonton, 81 Wis. 635; Jameson v. Maxcy, 91 Wis. 563.
It is claimed that costs should not have been adjudged to the defendants. The action ivas substantially the old action of trover. In such case the plaintiff must recover at least $50 damages in order to be entitled to costs. R. S. sec. 2918, subd. 5; Collins v. Lowry, 78 Wis. 329. The plaintiff not being entitled to costs, the defendants were. Id.; R. S. sec. 2920.
There are no other questions raised which are necessary to be discussed.
By the Court.— Judgment affirmed.