75 Wis. 595 | Wis. | 1890
To our minds, this case presents no question of doubt or difficulty. The plaintiff brought the suit to recover the value of a stock of boots and shoes, etc., which had been wrongfully taken from his possession by the defendant, and converted by the latter to his use. The plaintiff was in possession of these goods under a chattel mortgage given by one John A. Cook, dated October 5, 1888. The defendant admitted in his answer the execution and delivery of the chattel mortgage by Cook to the plaintiff, and that the plaintiff took possession of the goods therein described, but further alleged that the mortgage was fraudulent and void as to creditors of the mortgagor, and that the defendant took possession by virtue of certain writs of attachment mentioned, issued against the property of such mortgagor in favor of his creditors.
The evidence in the case is perfectly overwhelming and conclusive that the mortgage was made in good faith, and to secure an actual indebtedness of $2,199 due the plaintiff from Cook; 'and the jury, in answer to the question submitted, so found. We do not perceive any fact or circumstance
It is said the trial court refused to submit the question whether or not the mortgage was executed with fraudulent intent to the jury. But the court did so, doubtless, for the very good reason that no evidence had been introduced which would have warranted a jury in finding that it was given with any such fraudulent intent. There should be some competent testimony bearing upon such an issue; otherwise, it is idle to submit-it to the consideration of the jury. It surely cannot be seriously claimed that a jury should inquire as to a matter of fact, if no evidence has been given in regard to it. A jury finds facts from the proofs introduced on the trial, not from mere conjecture or surmise.
Of course, the consequence of giving the mortgage was to lessen the means of the debtor to pay other debts, but this result must always follow where the debtor pays, or secures the payment of, the debt of one creditor without paying all the others. The debtor’s ability to pay is pro tanto diminished; but this court has not held, nor is such the law, that a debtor cannot pay or secure an actual indebtedness of one creditor, providing the transaction is in good faith, because the effect may be to hinder or delay other creditors in collecting their debts. A debtor may mortgage his property for the purpose of securing one creditor, where there is no dishonest intent in the matter,
It is claimed that the mortgage, even .if given to secure a subsisting indebtedness due the plaintiff, was fraudulent because he did not take immediate possession of the mortgaged stock. The mortgage was executed on the 5th of October, 1888; and the debt became due the next day, which was Saturday. It appears that the mortgagor continued in possession of the goods until the next Monday morning. It is said he continued to sell goods from the stock, and applied the proceeds to his own use, and that the casé is within Anderson v. Patterson, 64 Wis. 557. The fact that he made such sales, and did not account for them, is not very clearly established. Suppose he did. The jury found that there was no understanding or agreement between the plaintiff and the mortgagor that the latter should remain in possession of the goods, make sales, and apply the proceeds to his own use. There is certainly no testimony that there was any such understanding or agreement. The plaintiff explains why he did not take possession of the stock Saturday, as he might have done under the mortgage. The explanation is satisfactory, and repels all presumption of fraud arising from the short delay. The delay was surely not unreasonable, in view of the facts of tho case. Richardson v. End, 43 Wis. 316.
As soon as the plaintiff took possession under his mortgage, he commenced selling off the stock at private sale. It is said that he had no right to do this, because it was in violation of provisions of ch. 294, Laws of 1887. That act does, in effect, provide that there shall be no sale of any pei’sonal property taken by virtue of a chattel mortgage, except ly the consent of the mortgagor, before the expiration of five days from the time when the property was actually taken. But in this case, on the day the possession was taken, the mortgagor consented in writing that the mortgagee might sell and dispose of the mortgaged “ property at public or private sale at once; without putting up any notices, or delaying the sale of said property for five days or any length of time.” This removes all objection to the sales made by the mortgagee. The statute was doubtless intended to protect the mortgagor against any immediate sale without a particular notice thereof, and to give him
We see no error in the case, and think the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.