10 N.W. 557 (Wis. 1881), David v. Birchard

Citation:10 N.W. 557, 53 Wis. 492
Opinion Judge:ORSAMUS COLE, C. J.
Party Name:DAVID v. BIRCHARD
Attorney:For the appellant there was a brief by Hazelton & Provis and Geo. Clementson, and oral argument by Mr. Provis. For the respondent there was a brief by Thomas & Fuller, and oral argument by Mr. Fuller.
Case Date:November 22, 1881
Court:Supreme Court of Wisconsin
 
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Page 557

10 N.W. 557 (Wis. 1881)

53 Wis. 492

DAVID

v.

BIRCHARD

Supreme Court of Wisconsin

November 22, 1881

Argued November 10, 1881

APPEAL from the Circuit Court for Grant County

Action by C. C. David to recover the value of certain goods and merchandise taken by the defendant, as sheriff of Grant county, under certain writs of attachment issued out of the circuit court for said county. The case is sufficiently stated in the opinion. There was a verdict and judgment for the plaintiff; a new trial was refused; and defendant appealed from a judgment in accordance with the verdict.

Reversed and a new trial awarded.

For the appellant there was a brief by Hazelton & Provis and Geo. Clementson, and oral argument by Mr. Provis.

For the respondent there was a brief by Thomas & Fuller, and oral argument by Mr. Fuller.

OPINION

[53 Wis. 493] ORSAMUS COLE, C. J.

The exceptions which are relied on for a reversal of this judgment are those taken to the refusal of the court below to give certain requests as asked by the defendant; also exceptions taken to some portions of the general charge. The plaintiff bases his right to recover the value of the goods in controversy upon a chattel mortgage given him by his brother, J. W. David, bearing date December 14, 1877. The defendant, as sheriff, seized the property under writs of attachment sued out by the creditors of David & Taylor, as they describe themselves in their writs, for goods sold in the fall of 1877. The mortgagor, J. W. David, was confessedly a member of the firm of David & Taylor, if any such firm ever existed. But whether such a partnership ever in fact was formed, so far as the attaching creditors were concerned, was a question much litigated on the trial. The plaintiff asserts that no such partnership existed; that while there was talk and strong expectations on the part of J. W. David that such a partnership would be actually formed during the summer or fall of 1877, yet the arrangement was really never consummated, because Taylor was a minor, and neither he nor his guardian for him furnished the amount of capital which it was understood he should contribute in order to form the partnership and become interested in the concern. The plaintiff also claims that the mortgage was given to secure a bona fide indebtedness due him from J. W. David for money previously loaned and liabilities incurred; and he further claims that the attaching creditors, when they sold the goods, were informed of the exact state of things...

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