7 N.W. 296 (Wis. 1880), Kalk v. Fielding

Citation:7 N.W. 296, 50 Wis. 339
Opinion Judge:DAVID TAYLOR, J.
Party Name:KALK v. FIELDING
Attorney:For the appellant there was a brief signed by Fish & Dodge and John B. Winslow, and oral argument by Mr. Fish and Mr. Winslow. For the respondent there was a brief signed by S. & A. S. Ritchie and H. V. Van Pelt, and oral argument by A. S. Ritchie.
Case Date:November 10, 1880
Court:Supreme Court of Wisconsin
 
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7 N.W. 296 (Wis. 1880)

50 Wis. 339

KALK

v.

FIELDING

Supreme Court of Wisconsin

November 10, 1880

Argued October 13, 1880

APPEAL from the Circuit Court for Racine County.

Replevin, for a stock of goods. The case is thus stated in part by Mr. Justice TAYLOR:

"This action is brought by plaintiff as mortgagee of a stock of goods owned by his son, against the sheriff of Racine county, who had seized the goods upon an attachment against the son. The action in which the attachment issued was commenced a day or two after the mortgage was given and filed, and the attachment was issued nine or ten days thereafter. The proof on plaintiff's part showed that the son was indebted to his father in the sum of about $ 1,800, for money theretofore loaned to him, and for which the father (the present plaintiff) held the son's two notes, one for $ 1,200, dated December 1, 1875, due six years after date, and one for $ 300, dated February 26, 1878, due six months after date, both drawing interest at ten per cent. per annum; and nothing had been paid on either of these notes previous to the taking of the chattel mortgage except one year's interest on the $ 1,200 note."

The court gave the following instructions at plaintiff's request: 1. A debtor may mortgage his property to one creditor in preference to any other creditors to secure the payment of any actual indebtedness, and such mortgage, when made in good faith, is not fraudulent. 3. The fact that plaintiff is the father of the mortgagor raises no presumption of fraud, if such mortgage was given and received in good faith to secure an actual indebtedness and without intent to hinder, delay or defraud creditors. 4. If the mortgagor was actually indebted to the plaintiff upon the notes in evidence, and the plaintiff took the mortgage in good faith for the purpose of securing the payment of said notes, and not as a mere cover or device to delay, hinder or defraud creditors, then the mortgage is valid. 5. If you should find that the mortgagor intended to hinder, delay or defraud his creditors at the time when the chattel mortgage was executed and delivered, but that the plaintiff did not share in or was not aware of such intent, but took the mortgage for the purpose of securing the indebtedness due him, then the mortgage is valid and you must find for the plaintiff. As the 6th instruction, the plaintiff requested the court to read to the jury sec. 2314, R. S., which was done. The court refused to instruct the jury at defendant's request, that the burden of proof was on the plaintiff, and that before he could recover he must have established, by a preponderance of evidence, that the mortgage was given in good faith to secure payment of an actual indebtedness, and not with the intent to place the mortgagor's property beyond the reach of his other creditors.

The case is further stated in the opinion.

Plaintiff had a verdict and judgment, and defendant appealed from the judgment.

Judgment reversed and cause remanded for new trial.

For the appellant there was a brief signed by Fish & Dodge and John B. Winslow, and oral argument by Mr. Fish and Mr. Winslow.

For the respondent there was a brief signed by S. & A. S. Ritchie and H. V. Van Pelt, and oral argument by A. S. Ritchie.

OPINION

[50 Wis. 341] DAVID TAYLOR, J.

The appellant assigns twelve grounds of error: 1. The court erred in sustaining plaintiff's objection to questions calling for communications by letter between plaintiff and his son, C. F. Kalk, and questions calling for oral communications between plaintiff and said C. F. Kalk, and as to the intention of plaintiff; also in its statement to jury in folio 63. 2. The court erred in sustaining

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plaintiff's objection to questions [50 Wis. 342] in cross examination of James Fielding as to what was being done with the goods at the time of the attachment, and as to statements of Kaempfer, C. F. Kalk's clerk; also in striking out evidence of Kaempfer's statements. 3. The court erred in sustaining plaintiff's objection to questions to Charles Baumbach as to the person from whom the...

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