Page v. Smith

24 Wis. 368 | Wis. | 1869

Cole, J.

We think that the instrument dated December 17, 1867, executed by Dedolph & Lipke, was not an absolute and unconditional bill of sale, making the plaintiff the absolute owner of the property, but was in the nature of an assignment for the benefit of creditors. The property therein transferred was valued at $2,600, while the advances made by the plaintiff at the time of its execution did not amount to $800. Besides, the instrument provides that the proceeds of the property, when sold, were to be applied to the payment of the plaintiff “and other creditors,” thus showing, upon its face, that it was an assignment for the benefit of creditors. According to the testimony of the witness Turck, who was the plaintiff’s agent in the transaction of this business, the creditors to whom the surplus was to be paid were named in the bond given by Dedolph & Lipke to the plaintiff on the previous 14th of November. That bond was secured by the real estate and chattel mortgage of the same date. It is claimed by the counsel for the plaintiff that the execution of this instrument was an entirely separate and distinct transaction from the giving of this bond and the mortgages ; that it conveys different property, and was accompanied by an immediate change of possession, and was for a new, valid consideration paid by the plaintiff when the same was executed. We thinly it would be quite difficult to sustain this view upon the face of the papers themselves. For instance, the chattel mortgage embraced the entire stock of goods, and all the property of every name and description belonging to Dedolph & Lipke on the 14th of November, 1867, including all staves, heading, logs and materials at their factory, manufactured or partially manufactured. And the station agent states that the property in controversy commenced coming to the depot November 14th, showing that a portion of it, at least, had been manufactured when the chattel mortgage was executed, and was embraced in it. But not to dwell upon this, the so-called bill of sale shows clearly upon its face that it was not intended to give the plaintiff an absolute and unconditional ownership of the property transferred. For he was to apply the proceeds to the payment of his own debt and the debts of other creditors, thus making the plaintiff a trustee for suoli creditors, so far as that property was concerned. It was therefore an assignment for the benefit of creditors (Norton v. Kearney, 10 Wis. 444), and was void because the statute upon that subject (ch. 63, R. S.) was not complied with. Also see Brahe v. Eldridge, 17 Wis. 184.

In various ways the defendants asked the court below to so instruct the jury; but all tlieir instructions upon that point were refused. Their instructions, or several of them, involving this question, should have been given.

By the Qourt. — The judgment of the circuit court is reversed, and a new trial ordered.