71 Wis. 529 | Wis. | 1888
The respondent commenced this action in the municipal court of- Rock county to recover the value1 of certain agricultural implements alleged to belong to the respondent company, which had been taken and converted by the defendant. The answer alleges that the defendant is the sheriff of Rock county, and that he took said property by virtue of an execution which, as such sheriff, he held against "W. A. Lints and Byron Atwood; that the property was, at the time of the taking of the same, the property of said Lints & Atwood, and if any transfer of said property had been made to the respondent by Lints & Atwood, or either of them, such transfer had been made with intent to hinder and delay the creditors of said Lints & Atwood, to the knowledge of said respondent, and that said company colluded with said Lints & Atwood in their fraud. After a trial in the municipal court, the ease was appealed to the circuit court of Rock county, where the case was again tried by the court and a jury, and a verdict rendered in favor of the plaintiff and respondent for the value of the property. Erom the judgment entered on-such verdict an appeal was taken to this court.
On the trial, at the close of the plaintiff’s evidence, the defendant moved for a nonsuit, which was denied, and exceptions taken. The ruling of the circuit judge on this motion is alleged as error. It is also alleged that the court-erred in the admission and rejection of evidence, and in the instructions given to the jury. The material facts as shown on the trial were as follows:
The respondent company had sold the property in question to the firm of Lints & Atwood on credit. Afterwards the firm of Lints & Atwood was dissolved, and the property of the firm was transferred to said Lints, he assuming the debts of the firm. After the dissolution of the firm, and on the 17th day of August, 1886, the general agent of the respondent called upon Mr. Lints for payment or settle
■ “ Received of the Norwegian, Plow Company, of Dubuque, Iowa [here follows a particular description of the property] ; all having been manufactured by the said Norwegian JPlow Company/ the aggregate net value of all said property being $202.56. Said property to be held by the said W. A. Lints, free of storage costs, and subject always to the order and complete control of said Norwegian Plow Company. W. A. Lints.
“ Dated at JEdgerton, Wis. August 17.1886.”
The agent of the company explained on the stand, as a witness, that the amount stated in the receipt was, by a ■mistake in adding up the value of the different articles, less by $23 and some cents than the real value, and that he at once corrected the credit to Lints, and informed the company, which also corrected the credit on its books. The sheriff seized the property on the execution against Lints &
There was a claim made on the part of the appellant that this transaction between Lints and the agent of the com-panjr was not a Iona fide transaction, but was made for the purpose of hindering, delaying, and defrauding the other creditors of said Lints & Atwood. The question of the bona fides of the transaction was submitted to the jury, and found in favor of the plaintiff.
Upon the argument in this court, the learned counsel for the appellant insist that the circuit court should have granted the nonsuit on their motion, because the evidence of the repurchase of the goods by the company from Lints did not show a valid purchase in the law; that there was no sufficient written memorandum of the sale, and no paj'ment for the goods or delivery and acceptance of the same, sufficient to make a valid sale under sec. 2308, R. S. It seems to us very clear that there was sufficient evidence in the case to show that these goods were transferred by Lints to the plow company, and accepted by the company in part payment of its debt against Lints & Atwood. The general agent of the company testified that such was the fact; that he at once gave credit for the value of the goods on their account, and that the company gave credit on its books for the value of the goods on the 19th of August. Giving such credit, if made in good faith, is as much apayment for them as though the money had been paid over for them. Gleason v. Day, 9 Wis. 498; Dow v. Worthen, 37 Vt. 108, 113; Walker v. Nussey, 16 Mees. & W. 302; Sharp v. Carroll, 66 Wis. 62, 66; Matthiessen v. McMahon's Adm'r, 38 N. J. Law, 536; Artcher v. Zeh, 5 Hill, 200; Ely v. Ormsby, 12 Barb. 570; Brabin v. Hyde, 32 N. Y. 519; Teed v. Teed, 44 Barb. 96; Mattice v. Allen, 3 Keyes, 492; Walrath v. Richie, 5 Lans. 362; Benj. on Sales, §§ 192,194. The general agent of the company testified that, at the time of the resale of
• It is alleged as error that the court permitted the agent of the company to testify that the credit for the goods was given on the plaintiff’s books on the 19th of August. This evidence that a credit was given by the company on its books was drawn out on a re-examination of the witness, and after he had testified upon the cross-examination by the defendant that he had seen the credit on the plaintiff’s books. The witness was asked by the plaintiff what wTas the date of the credit on said books. In this state of the case it wras not error to permit the plaintiff to ask what was the date of the credit. As original evidence for the plaintiff it wras probably inadmissible; but as a re-examination of the witness as to neur matter drawn out on cross-examination it was not error to admit the answrnr.
The rejection of evidence as to the consideration that
It is alleged as error that the court refused to instruct the jury as follows: “If you believe, from the evidence in the case, that the officer levied on and sold the goods in question in good faith, he having foimd them in the possession of Lints and believing that they belonged to him, then you must also find that before the sale a demand for the goods was made upon him by a person representing the plaintiff, and that the officer knew that said person represented the plaintiff, or was so informed by said person, or the plaintiff cannot recover.” This instruction was properly rejected, for at least two good reasons: (1) The officer who levied on the goods in this case was not the defendant in this action, and the proof shows that a demand was made upon the defendant; (2) the evidence does not show that the plaintiff’s goods were so mingled with the goods of the defendants in the execution under which the seizure wTas made th,at they could not be readily separated from the goods of such defendants. The evidence does not bring the case within the rule laid down by this court in Smith v. Welch, 10 Wis. 91.
The appellant insists that the court erred in instructing the jury as follows: “Did Lints by that transfer intend to defraud his creditors generally, and did Burdick, the plaint- ■ iff’s agent, have knowledge of that intent? If he did, the plaintiff is not entitled to recover; so that is the real question for you to determine.” It is urged that because the court did not insert in the charge the words, “ or hinder or delay his creditors,” and because it did not also .state, “his
The learned circuit judge made the following statement to the jury: “It is conceded that these goods were in the warehouse of Lints or under the control of Lints, and that they remained there after this sale where they had been before, and that calls in review this statute, which I will now read.” The learned judge then read sec. 2310, R. S., and then continued: “ These goods being left in the warehouse the same as they were before, under the control of Mr. Lints, the presumption, under this statute I have just read, is that the retransfer of those goods was fraudulent, and it was incumbent upon the plaintiff, therefore, to show that he took them in good faith. If you shall believe that he paid the full value for these goods, even although he left them there, that would rebut the presumption of fraud; so
The case appears to have been fairly tried, and the evidence fully sustains the judgment.
By the Court.— The judgment of the circuit court is affirmed.