99 Wis. 605 | Wis. | 1898
This is an appeal from an order overruling a demurrer to the complaint, which is very lengthy, and alleges numerous facts with Unnecessary detail, but is to the effect that between September 2, 1895, and November 20, 1895, the plaintiffs, as copartners and wholesale merchants at Chicago, sold and delivered to the defendants Cohen & Siegel, as partners, and at their request, goods, wares, and merchandise of the value of $1,155.98, on a credit of sixty days from the date of each invoice, for which they promised and agreed to pay to the plaintiffs the amount of each invoice as the same matured, amounting in all to the sum stated; that no part thereof has been paid, except $18 November 15, 1895; that the balance of $1,137.98 was still due and unpaid; that Cohen & Siegel during the summer and fall of 1895 in like manner purchased goods, wares, and merchandise of divers other wholesale and jobbing merchants in Chicago and elsewhere on credit, and became and were indebted therefor in December, 1895; that between August 1,1895, and December 29,1895, and while Cohen & Siegel were possessed of a stock of merchandise of the value of about $30,000, they, together with the other defendants, did wrongfully, maliciously, unlawfully, and fraudulently conspire, connive, and contrive together to defraud the creditors of Cohen & Siegel, including the plaintiffs, out of their just demands against Cohen & Siegel; that in pursuance of such conspiracy .to defraud their creditors, and as a means to effect such fraud, Cohen & Siegel, conspiring with the other defendants, made and delivered a large number of notes to the other defendants, respectively, or firms, dated at different times, and payable at different dates, and at different rates of interest, in the aggregate, of nearly $10,000, and upon which notes judgments were fraudulently taken by confession, and by the several defendants acting in concert, December 30 and 31, 1895, and which judgments so fraudulently confessed and entered, with accumulated costs,
The complaint further alleges that at the time said stock of goods and merchandise was so levied upon and seized by the sheriff under said several executions, the same was well and reasonably worth, and of the reasonable value of, $25,000; that the same was all the property and assets the defendants Cohen & Siegel, or either of them, then owned, not exempt, and that they have not now, nor has either of them, any tangible assets or property out of which the plaintiffs can make satisfaction of their said claim against them, above specified; that-Cohen & Siegel were not at any of said times indebted to any or either of said other defendants in any sum or sums whatever, but that all of said notes, complaints, answers, confessions of judgments, and judgments were and are false and fictitious, and that all of the acts of said defendants done in the premises (the purchasing from the plaintiffs of the several invoices of goods mentioned, and contracting the indebtedness due to the plaintiffs from Cohen & Siegel aforesaid; the making of the notes, complaints, answers, and confessions of judgments; the issuing of executions thereon; the sale of the goods and chattels of Cohen &
The complaint prayed judgment against the defendants, ■and each of them, for $1,137.98, with interest from January 20, 1896, and costs and disbursements of this action.
The demurrer admits to be true the several allegations of fact contained in the complaint. If they are true, they are certainly disreputable to the several defendants, and such as to entitle the plaintiffs to a remedy in an appropriate proceeding against them. The only question we are here called upon to determine is whether, upon the facts alleged, they are entitled to recover in this action. The complaint is replete with allegations of fraud, conspiracy, and concert of ■action by and between, and on the part of, the defendants; but none of them relates to any overt act in contracting the debt or procuring the goods. Nevertheless, the complaint .alleges, in effect, that during the time between August 1, 1895, and December 29,1895, Cohen & Siegel, as copartners, were possessed of a stock of merchandise of the value of about $30,000; that when their stock of goods was levied
There is no allegation that the plaintiffs were induced to sell or part with the goods, or any of them, to Cohen & Sie-gel, on credit, by reason of any fraud, false statement, representation, or pretense whatever. Even when a vendor parts with his goods upon false representations, yet it is well settled that such representations are not actionable unless they were not only relied upon by the vendor, but related to some present or past state of facts; that the mere failure to perform a promise, or to make good subsequent conditions which had been assured, is insufficient to maintain an action for deceit. Morrison v. Koch, 32 Wis. 254; Patterson v. Wright, 64 Wis. 289; Sheldon v. Davidson, 85 Wis. 141; Warner v. Benjamin, 89 Wis. 296; Louis F. Fromer & Co. v. Stanley, 95 Wis. 56. Whatever may have been the secret and ultimate purpose of the defendants, or any of them, yet. the first action alleged to have taken place in regard to the transfer of Cohen & Siegel’s stock of goods in fraud of the plaintiffs and their other creditors was on December 30,
The question recurs whether an action on the case can be maintained for such an alleged conspiracy. The adjudications are not all in harmonju The Massachusetts cases are to the effect that no such action can be maintained. Thus; it was held many years ago that “ an action on the case for-the fraud of the defendant in purchasing personal property of the plaintiff’s debtor, and aiding the debtor to abscond in order to prevent the plaintiff from enforcing payment of his-debt by attaching the property or arresting the body of the debtor, cannot be sustained; but the proper remedy is either to attach specifically the property fraudulently transferred, or to attach it in the defendant’s hands, by the trustee process.” Lamb v. Stone, 11 Pick. 527. To the same effect, Wellington v. Small, 3 Cush. 145; Bradley v. Fuller, 118 Mass. 239; Dudley v. Briggs, 141 Mass. 582; Dawe v. Morris, 149 Mass. 188. See, also, Greene v. Kimble, 6 Blackf. 552; Moody v. Burton, 27 Me. 427-435. In this last case, as well as some of the others cited, the learned judge writing the opinion clearly shows that “ the loss or injury would be too uncertain and remote for legal estimation.”
So, it was held in Connecticut that: “ An action for fraudulent acts, intended to induce, and by which a creditor was induced, not to secure a debt by legal process, by which means he lost the debt, will not lie at common law; and
In some of the cases relied upon by counsel for the plaintiffs in support of this action, the fraud and conspiracy were practiced directly upon the-plaintiff, and operated to destroy or impair his rights of property. Page v. Parker, 43 N. H. 363; Findlay v. McAllister, 113 U. S. 104; Place v. Minster, 65 N. Y. 89. This is not such a case. It has been held in New York that where the fraud or conspirac}^ is not actual and positive, but merely constructive, and where it did not concur in direct injury to the plaintiff, the action could not be maintained. Ross v. Wood, 70 N. Y. 8; Braem v. Merchants Nat. Bank, 127 N. Y. 508. The rule is elementary that an action on the case in favor of a general creditor will not lie against the fraudulent vendee or grantee of his debtor. Bump, Fraud. Conv. (4th ed.), § 528. In 6 Am. & Eng. Ency. of Law (2d ed.), 878, 879, it is said, as the better reason, in effect, that a general creditor has no such present or vested interest in the goods of his debtor as will render liable to such creditor, in an action on the
It follows that the complaint does not state a cause of action.
By the Gotiri.— The order of the superior court of Douglas county is reversed, and the cause is remanded with direction to sustain the demurrer, and for further proceedings according to law.