Wheeler v. Konst
46 Wis. 398
Wis.
1879
Check Treatment
Ryan, C. J.

The stock of goods in question was claimed by the respondents by different titles. Part they admitted to have belonged to the judgment debtors, but claimed under bills of sale. Part they claimed to have consigned for sale on their own account, not sold to the persons in possession or some of them. The appellant claimed that the whole stock of goods belonged, as against their creditors, to the judgment debtors; and that the bills of sale and the consignments were parts of' a device to defraud creditors. And there was evidence tending to support the claim.

Of course a fraud against creditors might be practiced under color of' consignment to the debtor, or to another for his use, as under color of a sale by the debtor.

The particular goods on which the appellant levied his execution, appear to have been part of the goods ostensibly consigned, not sold. And it is remarkable that the charge of the learned judge of the court below is almost exclusively devoted to the question of fraud in the bills of sale. In a single sentence only does the charge allude to the consignments. In that, the jury is instructed that if the respondents were the *401owners of the goods, and had in good faith consigned them to he sold on commission, the respondents would he entitled to recover. But the jury is not there or elsewhere instructed that if the consignments were colorable only, and the goods really sold to or for the use of the judgment debtors, with intent to defraud their creditors, the goods consigned might be taken on the appellant’s execution. And so it is quite apparent that the charge did not fully submit the cause to the jury.

This error is apparent at the outset of the charge. The learned judge states to the jury that the appellant claims the sales of the goods under which the respondents claim, to be fraudulent and void, and the title to them to be in the judgment debtors, as against their creditors. This is obviously a defective statement of the appellant’s claim; defective in a most material particular. The learned judge had refused the particular instructions bearing on the consignments, prayed by the appellant; and the appellant was entitled to have his claim fully stated to the jury. So his counsel appears to have insisted, and excepted to the partial statement. The exception is fatal.

It is proper to remark that the sentence in the charge, “ Fraud cannot be inferred but must be proved,” is almost, if not quite, within the rule of Gates v. Hughes, 44 Wis., 332.

By the Ooivrt. — The judgment is reversed, and the cause remanded to the court below for a new trial.