Button v. Metcalf
80 Wis. 193
Wis.
1891
Check Treatment
WiNsnow, J.

This judgment must' be reversed on account of manifest error in the charge of the court. The circuit judge said to the jury: “Really, all this simmers itself down to the question of what funds did he buy these goods with? Were they his own, or were they the funds of Button Bros.? ” And again: “Does the evidence make you think that this was an honest transaction, that Albert Button bought the goods for himself with his own funds, or do you think from the evidence that he bought them in part with funds of Button Bros. ? In the one case it is an *196honest transaction as the law views it. In the other case it is fraudulent, and you are to decide that just as you think the truth is.” And again, at the close of the charge: “ So far as the law is concerned, it is in a very small compass, as applied to this case, and it rests on just that one question, I think: Whose funds bought these goods from Mr. Hogan? ” Although the jury were told elsewhere in the charge that the question of good faith was involved, and that, if plaintiff bought the goods in part with the funds of Button Bros., and for the purpose of holding them until they could safely take them in their own names, it might be a fraud on the creditors of Button Bros., because it would naturally tend to hinder and delay them, still this can hardly be held to correct the evil of the thrice reiterated instruction that the sole question was,Whose funds purchased the goods ? The charge concludes with this statement, and we think the jury must naturally have understood that they were only to investigate that one question, and, if they found that any funds of Button Bros, were used in the purchase,their verdict must be for the defendant.

Conceding that there might be a fraudulent scheme between the Button Bros, and Albert Button to which Hogan & Anderson were not parties (a point not decided), by reason of which the title taken by Albert Button from Hogan & Anderson could be successfully attacked by creditors of Button Bros., it is plain that there must be something more proven to establish the fraud than the mere fact that Button Bros, furnished part of the funds. This one fact constitutes no fraud. It would simply constitute Albert Button a debtor of Button Bros, to the amount of funds so furnished. There must have been a secret trust reserved by which the title was to come back at some time to Button Bros., and this element was entirely omitted from the portions of the charge first quoted.

Criticism was also made by counsel upon that part of-the *197charge which deals with the question of preponderance of the evidence. It is as follows: “ You are to be satisfied by a fair preponderance of the testimony. That is an expression that may mean considerable, and it may not mean much, depending on how you understand it; but in the final analysis it means this: "What do you think about’ it, having your minds guided by the evidence?” While we should not, perhaps, feel constrained to reverse the judgment on this ground alone, were there no other error in the case, we cannot resist the conclusion that this definition of “ preponderance of evidence ” is too .elastic to be accurate. It tends to minimize the importance of the rule, and lead the jury to believe that it in fact means little or nothing. We think the plaintiff was certainly entitled to have the jury instructed (if instructed at all on the subject) that preponderance means greater weight of evidence, or evidence which is more credible and convincing to the mind, or some equivalent expression. In this connection we may say that, after a patient,examination of the case, we deem it extremely doubtful whether a verdict which finds that any portion of the funds of Button Bros, went into this purchase could be sustained upon the evidence. The evidence to that effect is certainly very vague, and shadowy.

As a new trial will be necessary, it is not deemed necessary to discuss the other alleged errors complained of by appellant.

The point made by respondent that the printed case is unnecessarily voluminous is not well taken. One of the points made by appellant, and cogently argued, was that the verdict was against the evidence, and, for the purpose of properly presenting and arguing that point, a full statement of the evidence was necessary.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.