Smith v. Welch, 10 Wis. 91

Smith v. Welch

10 Wis. 91 | Wis. | 1859

By the Court,

Paine, J.

This is an appeal from an order refusing a new trial.. It appears from the case that the motion was made on the minutes of the judge, “ upon the ground that the verdibt was contrary to law and evidence.” This does not properly bring up for review any error of the judge in refusing instructions asked. But as his refusal was urged as a ground for reversal by the appellant’s counsel, we will say that we think the instruction, in the form in which it was asked, was properly refused. It was a question of fraud in the sale from Campbell to the plaintiff, Campbell having remained in the actual possession of the goods. The last part of the instruction is, that if the jury should find the sale “to have been made in good faith, and to pay a bona fide debt, the question of the possession of the goods did not enter into the case at all.” It is very evident that the question of pos*94session had a very important bearing on the question, whether the sale was “ made in good faith,” and the jury must consider it, in determining that. But this instruction implies that they might pass on the question of good faith, independent of the question of possession ; and having, in this manner, come to the conclusion that the sale was bona fide, might leave the vendor’s possession entirely out of view. This would clearly have been erroneous. If it was only meant to say that the real question for the jury was that of good faith in the sale, and that this might exist, notwithstanding Campbell’s continuing possession, the instruction was not framed with sufficient accuracy to express that idea.

As to the question whether the verdict was against law and evidence, we think it very clear that the court below ought not to have disturbed the verdict upon the point of fraud in the sale; and still clearer, that this court ought not to reverse the order upon that ground. The only point upon which there is any room for doubt is, whether the verdict should be set aside because the evidence required it to be for the plaintiff to the extent of the goods purchased by him after the sale from Campbell, which were seized and sold on the attachment. The evidence upon this point is, that the plaintiff purchased about $175 worth of such goods, and Campbell thought about $75 worth remained in the store at the time of the seizure. But he also testifies that he was there in possession as the plaintiff’s clerk, and that Chapman requested him to point out the goods so subsequently purchased by the plaintiff, and that he did not do it. Upon these facts, we think the case as to these $75 worth, comes within the rule that where one suffers his goods to be so mingled with those of another, that an officer having a writ against those of the other, cannot distinguish them, he cannot maintain an action against the officer who has seized them, until notice and a demand and refusal. Bond vs. Ward, 7 Mass, 127; Sawyer *95vs. Merrill et al., 6 Pick., 430; Shumway et al. vs. Rutter, 8 Pick., 447; Harding vs. Coburn, 12 Met., 342.

In the case last cited, the court, while recognizing the rule, thought the facts were not such as to justify its application, and suggest that it should be applied with care. This is perhaps true, but even with this caution in view, we think this case comes fairly within it. In the first place, the party attaching demanded of the plaintiff’s agent that he should designate these goods, which he neglected to do. And, furthermore, the jury found that the sale from Campbell to the plaintiff was fraudulent, which brings it within the remark of the court in Shumway et al. vs. Rutter, as to a fraudulent collusion between the owner of such goods and the debtor, for the purpose of preventing an attachment.

The order appealed from is affirmed, with costs.