107 Wis. 578 | Wis. | 1900
The first error assigned is the refusal of the trial court to submit questions requested bythe defendant
It is urged by the respondent that there was no conflict of testimony on this question. Suffice it to say that while both the plaintiff and his brother Frank testify categorically to the existence and cancellation of the $450 debt, and to payment of the $600, the cross-examination threw both of them into conflict with probabilities, and Frank into direct conflict with a disinterested witness, when he attempted to account for the disposition of the moneys so paid. As has often been said, fraud can seldom be proved by direct evidence. Its perpetrators work in the shadow and secretly, and, of course, by their own testimony deny it. In the majority of cases it must be ascertained from circumstances, from the manner of the parties, and by inference from such facts as the opposite party can lay before the jury. Enough of suspicious circumstances surrounded this whole transaction to have justified the jury in disbelieving the testimony of the interested parties, even as to the existence of the consideration claimed, and the court should have submitted either the questions asked or some other questions sufficient to dispose of the controversy as to consideration. Failure so to do, especially when his attention was called to the subject, was error. Absence of any finding on the subject
Tbe second assignment assails the instructions given with reference to the change of possession. They are at some length, and need not be set forth in extenso. The court himself decided and declared that no actual physical change of possession took place, but nevertheless submitted to the jury the fifth and sixth interrogatories of the special verdict, and instructed them, in substance, that it was not a question of actual physical possession, which was conceded to have been retained by Frank Missinskie, but involved the question as to the “real possession,” saying: “The explanation of it as given by the plaintiff is that he did not want to run the machine himself, and that he therefore hired his brother to take charge of it and run it in that way. If that is true, the possession remained in the plaintiff. If you find from the testimony that Frank Missinskie was working for his brother during this period of time I have mentioned here, and that, while he whs in actual manual possession of the property, yet he was only acting as the servant or agent of his brother, then the possession was in the plaintiff, and you should answer the question, No; that the possession was not, while it was actually and apparently in the possession of Frank, yet, as I say, if you find that he was only acting as the servant. and agent of Phillip, then the legal possession was Phillip's, and you should answer the question, No.” This instruction is- diametrically opposed to the rule over and over again laid down by this court, and indeed by substantially all courts, in applying the requirements of sec. 2310, Stats. 1898, providing that transfers shall be presumed fraudulent “unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing sold.” The delivery and possession contem
In this connection, while not pointed out as an error, and therefore not ground of reversal, we think it well to call attention to the form of the fifth question, which renders it practically double and misleading to the jury. The query is whether Frank Missinskie continued in possession of the property “ after the same [bill of sale] was made, and down to the time of the levy by defendants This was a period of something over three years, and it was apparent in evidence that during the last six or eight months of this period, the machine in question, the thresher, had not been in use, and therefore had been left by Frank at the farm of a neighbor, so that it was not in his manual possession. The jury might well have understood that they were to answer this question, No, although the machine had remained in Frank’s possession after the sale, and down to the period when, by reason of change of seasons, he had stored it on the farm of another. If this form of question were used, it should have been carefully guarded by explanation that his possession continued while the machine was so stored.
The appellant further assigns as error under his second classification the instruction given with reference to the second question of the special verdict, to the effect that as to that question and all other questions “ the burden of proof is upon the defendant. The person who alleges fraud must
The third error is assigned upon the refusal of the court to give to the jury certain instructions requested by the defendant; among others, an instruction to the general effect that relationship, while not necessarily a badge of fraud, was properly to be'considered as a circumstance in deciding whether the transaction between the parties was in good faith or with a hidden purpose of defrauding creditors of the grantor. Inasmuch as reversal must follow the errors hereinbefore pointed out, we need not decide as to the absolute accuracy of the instructions requested. They are sub
Further error is assigned upon refusal of the court to give to the jury the fourteenth instruction requested, to the effect that a sale is void where the object of the debtor is to hinder and delay if made to one having knowledge of such intent, and that such knowledge need not be actual, but will be inferred from facts and circumstances sufficient to raise a suspicion or put him upon inquiry. No error was committed in the refusal of this instruction, for it is obnoxious to the rule that it informs the jury of the legal effect of their answer to a portion of the special verdict. Further than this, we observe that the court gave the substance of the instruction as to constructive knowledge or notice of the grantor’s intent in his instruction to the jury with reference to the fourth question. That instruction was, at least, sufficiently favorable to the defendant upon this subject, so that whether it may have been sufficiently guarded to protect the plaintiff’s rights need not be considered. Bleiler v. Moore, 94 Wis. 385.
Again, error is asserted upon the refusal to give the eighteenth and nineteenth instructions requested, to the effect that the indebtedness from Frank to Phillip in the sum of $450 would not make the sale Iona fide and valid, unless the plaintiff saw that the $600 cash was applied to pay the creditors of Frank Missinskie; and (19) “ if you find that Phillip Missinshie knew when he took the bill of sale that Frank Missinskie was largely indebted and pressed by his creditors, then it was the duty of Phillip to have the $600 balance of purchase price applied to the payment of Frank’s debts then owing from Frank to his creditors.” Neither of these instructions so requested is so strictly accurate that error could be predicated upon their refusal. Nevertheless ideas are embodied therein which, in certain aspects of the case,
The final assignment of error to the refusal of the court to direct a verdict for' the defendant cannot be sustained. The case made by the evidence was one about which reasonable minds might well differ, and was therefore properly for the jury.
By the GovH.— Judgment reversed, and cause remanded for a new trial.