50 Wis. 339 | Wis. | 1880
The appellant assigns twelve grounds of error: 1. The court erred in sustaining plaintiff’s objection to questions calling for communications by letter between plaintiff and his son, C. F. Kalk, and questions calling for oral communications between plaintiff and said O. F. Kalk, and as to the .intention of plaintiff; also in its statement to jury in folio 63. 2. The court erred in sustaining plaintiff’s objection to ques^
The first error assigned is the rejection of the evidence offered by the defendant upon cross examination of the plaintiff, first, as to what information he had received from his son just before he took the mortgage, by a letter addressed to and received by him; and second, as to a conversation had between •the plaintiff and his son, the mortgagor, shortly after the
Upon tbe further cross examination of the plaintiff, it appeared that the mortgagor and tbe plaintiff had an interview shortly after tbe mortgage was given and before tbe attachment was levied. Tbe defendant’s counsel asked tbe following questions, which were objected to by tbe plaintiff, and tbe objections sustained by the court: “Did be say anything to
The second assignment of error we do not think well taken, because the evidence in the case shows what was in fact being done with the goods at the time the sheriff levied his attachment, and as to that fact there was no dispute in the evidence.
The third assignment we are inclined to hold well taken, so far as it relates to the rejection of the evidence offered to show the statements made by the mortgagor at the time he bought the goods of the attaching creditors. The evidence offered tended to show the fraudulent intent of the mortgagor. His intent was a material fact in issue, and for that purpose the evidence was admissible, although the fraudulent intent on the part of the mortgagor would not prejudice the mortgagee unless he were privy to such intent, and aided in its execution. The objection being general, if the evidence was admissible for any purpose it should have been received, and the court should have instructed the jury as to how far it would affect the rights of the plaintiff. See cases cited in appellant’s brief.
The fourth assignment is not well taken. The record does not disclose what the nature of the comments of the defendant’s counsel were, which the court seemed to consider irrelevant and improper, and we cannot say from the record that any error was committed by the court in intimating that such comments were improper. We think, however, that the counsel for the defendant would be justified in commenting upon the fact that the plaintiff did not call the mortgagor as a witness, if he was in the court, or where his attendance could have been easily procured.
The fifth assignment raises the question whether the mort
The sixth assignment of error is based upon the instructions given by the learned circuit judge as to the construction to be given to section 2319, R. S. 1878. The circuit judge gave the construction to this section which this court has very broadly intimated should be given to it in the cases of Sargeant v. Solberg, 22 Wis., 132, and James v. Van Duyn, 45 Wis., 512. In the last case it is said: “We do not think the 'Statute was intended to put upon the plaintiff the burden of proof throughout the whole case, and compel him to prove affirmatively that his mortgage was not in fact fraudulent and void as to creditors. When the mortgagee has proved that the mortgage was given to secure an actual indebtedness, and the amount thereof, he has, in fact, established prima facie
The seventh, eighth, ninth and tenth assignments of error relate to instructions given to the jury upon the trial in the court below. After a careful consideration of the instructions which are excepted to, we are of the opinion that the court committed no error in giving the same; that they are all applicable to the facts in the'case, and do not violate any rule of law. The appellant also insists that the court erred in refusing to instruct the j ury “ that if the plaintiff, or his agent, took the mortgage for more than was in fact due to the plaintiff from the mortgagor, and claimed to hold the property for the full amount of the mortgage against the creditors of the mortgagor, then the mortgage is fraudulent and void as to such creditors.” We think this instruction was properly refused, for the reason that there is no evidence in the case showing that the plaintiff intended to take the mortgage for any greatér amount than his debt, nor that he claimed to hold the property mortgaged for any greater sum. The most the evidence shows is that a slight mistake was made in computing the amount due on the notes, and a larger amount than was actually due was in fact inserted in the mortgage. In order to render-a chattel mortgage void in law because taken for a larger amount than is in fact due to the mortgagee, it must appear that it was^ intentionally taken for such greater sum. If it was so taken by mistake, in computation or otherwise, it will not render the mortgage void in law. The fact may go to the jury upon the question of the fraudulent intent of the parties, but it does not render the mortgage void in law unless it be knowingly taken for more than there is due.
We think the court erred in not setting aside the verdict and granting a new trial on account of the errors occurring on the trial in excluding the evidence offered by the appellant, as
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.