104 Wis. 92 | Wis. | 1899
It appears from the record that April 9, 1898, the plaintiff, a milling corporation of Minneapolis, commenced this action of replevin to recover 500 sacks of flour, of the value of $625, which had been ordered by the defendant W. F. J. Fogo, a merchant and dealer in flour at Bichland Center, March 28, 1898, and which was received by Fogo at his store on April 5, and in the forenoon of April 6, 1898, and which on the afternoon of the same day he mortgaged, with other property, to the defendant the State Bank of Bichland Center, for $4,969.13, and to the seven other defendants in the aggregate amount of $7,483.64, on the ground that Fogo purchased the same knowing himself to be insolvent and with the preconceived purpose of not paying for the same. The defendants severally and separately answered.
A jury having been waived and trial had, the court found, as matters of fact, in effect, that October 26, 1897, Fogo ordered of the plaintiff three car loads of flour, to be received.
And, as conclusions of law, the court found, in effect, that the plaintiff was not entitled to the possession of the property or any part thereof, nor to a return or delivery thereof, nor to recover the value of the same or any part thereof; that Fogo was entitled to a return of such property, or, in case a return could not be had, that Fogo have judgment for the value thereof, to wit, $625, together with interest from April 8, 1898, and six cents damages for the taking and withholding of the property; that as the property had been delivered to the plaintiff, and a return thereof had been claimed Ay Fogo, it was ordered that judgment be entered against the plaintiff dismissing this action upon the merits as to all the defendants except W. F. J. Fogo; that judgment be entered against the plaintiff for a return of the flour, and, in case a return cannot be had, for $625 damages, being the value thereof; that the defendants and all of them have their costs in this action against the plaintiff, to be taxed. From the judgment entered thereon accordingly the plaintiff appeals.
. It is undisputed that Fogo got the flour all into his store before noon of April 6, 1898, and that upon the afternoon of that day he gave the chattel mortgage thereon to the defendant bank, and the other chattel mortgages thereon to the other defendants. The pledging of . this property to other favorite creditors, almost immediately upon getting possession of it, naturally excites suspicion as to the good faith of the transaction. But the trial judge, who was in a much better position to determine that question than we
It is conceded that where a person orders goods, knowing himself to be insolvent, without disclosing his insolvency, and with the preconceived purpose of not paying for them, the purchase is fraudulent, and the vendor, upon discovering the fraud, may rescind the contract and retake the goods, as against the vendee and those having no better right to them. Lee v. Simmons, 65 Wis. 526; David Adler & Sons C. Co. v. Thorp, 102 Wis. 70, and cases there cited. But it is equally true that the. mere omission of a purchaser of goods to disclose his known insolvency to the vendor is not a fraud for which the' sale may be avoided. Such mere silence in respect to his pecuniary condition, when no inquiries have been made, is not evidence of fraud. An honest, though abortive, purpose to continue business and pay for the goods is consistent with the vendee’s knowledge of his own insolvency. Id. We must hold that the sale of the flour to Fogo was complete and without any fraud before the giving of either of the mortgages.
It may be that the plaintiff would not have shipped the flour but for the representations made to Anderson by Pease at Platteville, but Pease was not Fogo's representative and had no authority to speak for him. It was a mere casual •conversation. The defendant bank had no business with Anderson at the time. Pease was not transacting any business for the bank at the time of making the declarations attributed to him. Since he was not, at the time of making such declarations, acting within the scope of his authority as assistant cashier of the bank, it is obvious that he could not bind the bank by such declarations. Randall v. N. W. Tel. Co. 54 Wis. 140-144, and cases there cited; Ram
By the Oowt.— Xas judgment of the circuit court is affirmed.