111 Wis. 165 | Wis. | 1901
Lead Opinion
The following opinion was filed May 21,1901:
The appellant’s brief presents and argues some seventy specific allegations of error. In many cases ■they are merely variant aspects of the same question, and in the effort to avoid undue prolixity we shall attempt to
The respondent’s counsel contends that, by the nature of things, he was cut off from presenting the best evidence, ■namely, the books and schedules of the corporation itself,
Nevertheless, there is authority as well as reason in support of the view that extreme and unusual acts and conduct, such as are the customary accompaniments and consequence of insolvency in fact and are not usual accompaniments of a contrary condition, may be admitted to consideration as circumstances tending, in connection with other more direct evidence, to establish the fact that assets do not equal or exceed the debts. Abbott, Tr. Ev. (2d ed.), 777; Jordan v. Osgood, 109 Mass. 457; Booth v. Powers, 56 N. Y. 22, 32;
In this connection,-it is natural to note appellant’s contention that the evidence was not sufficient to sustain a finding of insolvency, as the term is above defined, merely to say, however, that we deem the question doubtful. . Although the evidence of distress and the resort to extreme shifts and expedients for raising money may have been admissible, the conclusion of insolvency should be drawn therefrom, if at all, only with much hesitancy. Embarrassment, accompanied by extensions and other expedients, is not unusual with manufacturing concerns having abundant assets. Property is not money, and is not available to pay debts or wages, nor always as a basis of credit upon which to borrow. It must not be forgotten that a part of the period involved in the transaction was that preliminary to, and in part inclusive of, the now historical panic of 1893, when men and corporations of abundant wealth were driven to extraordinary shifts to raise trifling sums of money, when credit almost ceased, and rates of interest rose to fabulous height, so that conduct ordinarily inconsistent with solvency became insignificant on that subject. The evidence should,
Appellant further asserts that the case was tried throughout and submitted to the jury on the assumption, by both attorneys and court, that solvency could not exist unless the assets, reasonably valued, exceeded, all liabilities, inclusive of the par value of outstanding capital stock, — a proposition repudiated by this court in Hamilton v. Menominee Falls Q. Co. 106 Wis. 352, which had not been decided at the time of the trial below,— and that the answer of the jury finding the representation of solvency to be false is predicated upon that view. There are many things in the record not inconsistent with appellant’s assertion. In the examination of witnesses by plaintiff’s attorney, that construction of the word is repeatedly insisted on. Defendant’s attorney had present in court, and referred to for certain purposes, a balance'sheet of January 1, 1893, showing the assets to exceed debts by something like $180,000, but to be a trifle less than the total liabilities if outstanding stock were included, which, however, he refrained from introducing in evidence in such a way that it could be used upon the question of solvency. The instruction on the subject is consistent with either view. That instruction on the subject of insolvency was as follows: “A person is insolvent when his assets, at a fair market value, are not sufficient to pay his liabilities. You are instructed that the National Electric Manufacturing Company was not insolvent on the 1st day of February, 1893, or on the 20th day of April, 1893, if at such times its assets, at a fair market value, were worth more in the aggregate than its whole .liabilities.” Obviously the jury may have understood the words, “whole liabilities,” to include or exclude capital
Without assuming to decide, adversely to the view of the trial court, that Smith’s testimony was so without conflict, either of testimony or of probabilities, that the court ought to have proceeded upon the assumption that the interview testified to by him took place and that all the information described by him was in fact disclosed, it appears to us entirely clear that not enough significance was given to that testimony in the submission of the case. If Noah Shaw
In this connection it, is • perhaps most natural to say that we cannot concur in the view advanced by appellant, under other assignments of error, that the evidence was not sufficient to support a finding that the representations complained of were made. Noah Shaw testified thereto positively, and Gilbert, with equal positiveness, made denial. This, we think, makes a jury issue, notwithstanding certain circumstances which, appellant argues, render Shaw’s testimony incredible. Such evidence consists of the testimony of employees of the National Company that they never saw him enter the office, and of his own testimony that he never at any other time had any transactions on behalf of Shaw & Co. with the National Company or with Gilbert. This evidence, however, goes no further than to create a conflict and present a question, the jury’s answer to which, either way, has support.
Still, another consideration disposes of this assignment of error, namely, that the answer to this question is equally sufficient to support a judgment whether the reliance were placed on one or on all of the false misrepresentations, since, as hereafter pointed out, they are each'and all material. Such was the ground of overruling a similar assignment in Patry v. C., St. P., M. & O. P. Co. 82 Wis. 408, where the question was whether either conductor or brakeman of a defendant railway company invited plaintiff upon the train. It was wholly unnecessary that the jury should define which, for the invitation by either was sufficient to establish the liability.
Hardly less material to the quality of a contemplated line of credit is the fact that the debtor’s business is prosperous. Solvency in an unprofitable business may quickly become insolvency by the very necessity of realizing upon assets to meet pressing debts. But if the business is .profitable the probabilities of such a contingency are greatly lessened. A
Another error associated with that just discussed consisted in refusal of an instruction that the amount of this asset was not merely the face of the stock issued without consideration, but also interest thereon from date of its' issue. If the stockholders were liable at all, they were liable as well for interest from the time when they ought to have paid the principal. Laycock v. Parker, 103 Wis. 161, 187. That time ivas, of course, when they received the unlawfully issued stock. Jenkins v. Bradley, 104 Wis. 540, 563. The interest from that time would have been so considerable a sum that the share apportionable to plaintiff’s claim against the company would have approximated a thousand dollars. Instruction should have been given substantially as requested.
In the same connection, however, is raised one question upon which we ought to speak; that is, the award of interest by the court without any finding of the jury other than •the amount to which the plaintiff’s firm was induced to give -credit by the defendant’s misrepresentations. The appellant contends that in all actions for recovery of unliquidated ■damages interest can only be recovered as damages and in
We find no other questions raised which, by reason either of their general importance or their probable significance upon another trial, justify protracting this opinion by their discussion. Whether some other rulings on evidence or some refusals of requested instructions may have constituted technical error or may not is not very material, since for errors already defined we must reverse and order new trial. So far as such questions are not answered by the general views expressed they are deemed unnecessary of discussion.
By the Court.— Judgment reversed, and cause remanded for a new trial.
Concurrence Opinion
I concur in the reversal of the judgment, in this case for errors mentioned in the opinion filed; but,, assuming that the plaintiff has the right to recover, then I dissent from the proposition that the plaintiff, as surviving partner of the firm, cannot recover the full amount of damages sustained by the firm by reason of the tort committed by the defendant. In my judgment, the defendant is not relieved from such liability by reason of the fact that the plaintiff purchased the interest of her partner in the assets and business of the firm. This view is sustained, as I think, by the authorities cited by the plaintiff’s counsel.
A motion by the appellant for a rehearing was submitted on the brief of Frawley, Bundy & Wilcox, attorneys, and G. M. Woodward’, of counsel.
The motion was denied September 24, 1901.