Rock v. Collins

99 Wis. 630 | Wis. | 1898

WiNslow, J.

The evidence in this case was voluminous, and it is not deemed necessary to review it in this opinion. It is sufficient to say that there was ample evidence to sustain the findings of the trial court, and hence the questions to be discussed will be simply questions of law.

1. A question of practice is raised. The original answer of the garnishee defendant consisted of a denial of liability under the statute. Upon the trial, and at the close of the plaintiff’s testimony, the garnishee defendant was allowed to interpose an amended answer, against a general objection by the plaintiff, setting forth the facts as to the holding of the collateral securities. This answer was not verified, but no objection was made upon that ground, nor was any surprise claimed; and in fact it is difficult to see how any claim of surprise could be made, because the transactions set up in the amended answer were the very transactions upon which the plaintiff’s claim of liability was founded. We can see no error in this ruling. Such amendments are frequently allowed at the circuit, and their allowance rests in the sound discretion of the trial court. If the objection that the amended answer was not verified was relied on, it should have been made at the time of the filing of the answer. Not being made at that time, it was waived. Grace v. Newbre, 31 Wis. 19.

2. It is objected that the chattel mortgage upon the logging outfit was invalid, because made by one partner alone, without the knowledge of his copartner. The general power of one partner to pay firm debts out of firm property in the ordinary course of business is well established; and, if he may pay a debt, no good reason is perceived why he may not secure its payment by pledging or mortgaging firm property. It has been field by this court that one partner may, in the absence of his copartner, mortgage the firm property to secure a bona fide partnership debt (Hage v. Campbell, 78 Wis. 573); also, that one partner may make a valid voluntary assignment of the personal property of the firm for the benefit of creditors where the other partner has absconded (Voshmik v. Urquhart, 91 Wis. 513). There has been some diversity of opinion upon the question whether one partner may, without the consent of his copartner who is accessible for consultation, mortgage the entire firm property to secure a firm debt, when the effect of the mortgage would be to practically terminate the business of the firm, although the weight of opinion seems to favor the validity of such a mortgage. Jones, Chattel Mortgages, § 46. But it is certain that the subsequent acquiescence or consent of the other partner would remove all question as to the validity of the mortgage. Jones, Chattel Mortgages, supra. Such acquiescence was proven in the present case.

3. It is claimed that the mortgage was void, because the note which it was given to secure was not correctly described, and because it was intended to secure thereby the individual debt of Mike Collins as well as the firm debt. The note held by the garnishee defendant was for $1,200, and was dated July 2, 1894; but it was described in the chattel mortgage as a note for $1,400, bearing date July 2,1894. The evidence shows beyond question that the $1,200 note was the only note held by the garnishee, and that it was intended to be secured by the mortgage. The difference in amount arose from the fact that there was about $50 of interest due upon it, and the parties attempted to include in the mortgage the $150 indebtedness of Mike Collins. Thus, it appears that the correct date was given, but not the correct amount. It is not like the case of Follett v. Heath, 15 Wis. 601, where the description of the debt was false in every respect, but rather like the case of Paine v. Benton, 32 Wis. 491, where the description was correct in some particulars and false in others, and where it was shown by the proof that the note in evidence was the note intended to be secured. “ It is sufficient if the note is so far described that it appears with reasonable certainty to be the note intended to be secured.” Weber v. Illing, 66 Wis. 79. The fact that the individual indebtedness of Mike Collins of $150 was attempted to be covered by the mortgage, and that the amount of the mortgage was thus improperly swelled to $1,400, was undoubtedly evidence tending to show fraud, but did not necessarily render the mortgage fraudulent in law. The inference of fraud may be repelled by the circumstances surrounding the transaction. Bradley Co. v. Paul, 94 Wis. 488. In the present case the trial court was of the opinion that the inference of fraud was overcome by the proofs, and we cannot say that such conclusion was wrong. The mortgage is only security for the amount of the firm debt secured thereby, and, as to the individual debt of Mike Collins, it is not a lien. Cribb v. Morse, 77 Wis. 322.

4. The garnishee defendant took an absolute deed of certain timber, as additional security for the payment of his 'debt; and it is now claimed that the fact that he took a deed, instead of a mortgage, is quite convincing evidence of fraud. Undoubtedly, the fact that the deed does not truly state the exact transaction, and hence is well calculated to deceive creditors, is to be considered; but deeds are frequently given as security only, and, when they are satisfactorily shown to have been given in good faith and without intent to defraud, we know of no iron-clad rule which declares them void. Bump, Fraud, Conv. (4th ed.), §55; Carey v. Dyer, 97 Wis. 554.

5. There are many claims of error in the admission of evidence; but as this action was tried by the court, and as there was ample competent evidence-to sustain the findings,, it becomes unnecessary to consider these claims. It does not seem necessary to discuss other points made, as they relate to questions or inferences of fact, and we have discussed all the purely legal questions which are of any serious importance, involved upon the appeal.

By the Oourt.— Judgment affirmed.