Kalk v. Fielding
| Decision Date | 10 November 1880 |
| Parties | KALK v. FIELDING. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Racine county.S. & A. S. Ritchie and H. V. Van Pelt, for respondent.
John T. Fish, for appellant.
This action is brought by the respondent, as mortgagee of a stock of goods owned by his son, against the appellant, 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 the part of the plaintiff showed that the son, the defendant in the attachment suit, was indebted to his father, the respondent, in the sum of about $1,800, for money theretofore loaned to him by the plaintiff, and for which the plaintiff held his 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 10 per cent. per annum, and that 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 case was tried by a jury, and the plaintiff had a verdict and judgment in his favor. The defendant appeals, and assigns 12 grounds of error:
“ First. The court erred in sustaining plaintiff's objection to questions calling for communications by letter between plaintiff and his son, C. F. Kalk, (folios 34 and 35,) and questions calling for oral communications between plaintiff and said C. F. Kalk, (folios 48 and 49,) and as to intention of plaintiff, (folio 53;) also in its statement to jury, (folio 63.) Second. The court erred in sustainingplaintiff's objection to questions in cross-examination of James Fielding as to what was being done with goods at time of attachment, (folio 71,) and as to statements of Kaempfer, C. F. Kalk's clerk, (folio 75;) also in striking out evidence of Kaempfer's statements, (folio 75.) Third. The court erred in sustaining plaintiff's objection to questions to Charles Baumback as to from whom goods in controversy were purchased, (folio 79,) and as to statements of C. F. Kalk for purpose of obtaining credit, (folio 82.) Fourth. The court erred in sustaining plaintiff's objection to comments of defendant's attorneys on non-production of C. F. Kalk as a witness, (folios 85 and 86,) and in charging the jury to consider only the evidence, (folio 95.) Fifth. The court erred in holding the mortgage valid on its face, and in so instructing the jury, (folio 94,) and in refusing to give the third and fourth instructions requested by defendant, (folios 104 and 105.) Sixth. The court erred in holding that the burden of proof to establish fraud was upon the defendant, and in so instructing the jury, (folios 93-97,) and in refusing to give the second instruction requested by defendant, (folios 103 and 104.) Seventh. The court erred in giving to the jury the first and fourth instructions requested by plaintiff, (folios 96 and 99.) Eighth. The court erred in giving to the jury the third instruction requested by plaintiff, (folio 98.) Ninth. The court erred in giving the fifth instruction to the jury requested by plaintiff, (folio 100,) and in modifying the seventh instruction asked by defendant, (folios 107 and 108.) Tenth. The court erred in giving to the jury the sixth of the instructions requested by plaintiff, and in reading to jury section 2314 of the Revised Statutes, (folio 100.) Eleventh. The court erred in overruling defendant's motion to set aside verdict and for a new trial, (folio 111.) Twelfth. The court erred in taxing as costs in favor of plaintiff the items set out in folios 111 and 112, except as modified, (folio 113.”)
The first error assigned is the rejection of the evidence offered by the defendant upon cross-examination of the plaintiff-- First, as to what information he had received from his son just before he took the mortgage, by a letter addressed to and received by him; and, second, as to a conversation had between the plaintiff and his son, the mortgagor, shortly after the mortgage was given. The plaintiff, as a witness on his own behalf, had answered that he had received a letter from his son the seventeenth or eighteenth of February, 1879. The mortgage was given on the nineteenth of February, 1879. The counsel for the defendant then asked whether the plaintiff had that letter with him, and he replied that he had not; that he left it at home. Counsel then put the following questions, which were objected to by the plaintiff, and the objections sustained: “What did that letter say to you?” “Did that letter inform you that he was about to be sued and you had better send a man there?” My own opinion is that the objections were properly sustained, upon the ground that the questions called for the contents of the letter; that the letter was the best evidence, and should have been produced, or notice to produce the same should have been given before the contents could be proved by the oral testimony of the witness.
The other members of this court are inclined to hold that the question should have been answered, for the reason that the object of the question was to elicit the fact that the plaintiff had information from his son that he was about to be sued and that he had better see about his own claim. The fact that he had obtained such information from his son was material, and it was immaterial whether he had received the information by letter or otherwise. That the letter being in the possession of the plaintiff, if the defendant was willing to rely upon the plaintiff's recollection as to its contents, the plaintiff had no reason for objecting; that the letter was the best evidence; that such objection, under the circumstances, was one which could affect only the rights of the defendant, and he might, if he saw fit, waive it. Upon the further cross-examination of the plaintiff it appeared that the mortgagor and the plaintiff had an interview shortly after the mortgage was given and before the attachment was levied. The defendant's counsel asked the following questions, which were objected to by the plaintiff, and the objections sustained by the court: “Did he say anything to you about how much his receipts were, when he was there to see you?” “Did you learn from your son that there were bills in the hands of attorneys for collection against him?” “Did he tell you the amount of sales that were being made?”
We are of the opinion that these were proper questions upon the cross-examination of the plaintiff, and the court erred in sustaining the plaintiff's objections. The defendant was attacking the bona fides of the mortgage claim of the plaintiff, and insisting that it was not given in good faith for the purpose of securing the debt due from the mortgagor to him, but for the purpose of a cover to prevent other creditors from subjecting the mortgaged property to the payment of their debts. Any evidence, therefore, which would tend to show that purpose, was competent and should have been admitted. If, therefore, the defendant could have shown by this evidence that the mortgagor had told the plaintiff he was making large sales of the stock mortgaged, and had received large sums of money on such...
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