8 N.W. 111 (Wis. 1881), Eberhardt v. Sanger

Citation:8 N.W. 111, 51 Wis. 72
Opinion Judge:JOHN B. CASSODAY, J.
Attorney:For the appellant there was a brief by Cotzhausen, Sylvester & Scheiber, and oral argument by Mr. Scheiber. For the respondent there was a brief by Austin & Runkel, and oral argument by Mr. Austin.
Case Date:January 11, 1881
Court:Supreme Court of Wisconsin

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8 N.W. 111 (Wis. 1881)

51 Wis. 72




Supreme Court of Wisconsin

January 11, 1881

Argued December 21, 1880

APPEAL from the Circuit Court for Fond du Lac County.

Action for damages for an unlawful taking and conversion of chattels. There was a special verdict, and also a general verdict for the plaintiff; the court refused to grant a new trial, and rendered judgment in accordance with the general verdict; and defendant appealed from the judgment.

The case is further stated in the opinion.

Judgment reversed and causes remanded.

For the appellant there was a brief by Cotzhausen, Sylvester & Scheiber, and oral argument by Mr. Scheiber.

For the respondent there was a brief by Austin & Runkel, and oral argument by Mr. Austin.


[51 Wis. 73] JOHN B. CASSODAY, J.

The complaint alleged that the defendant unlawfully took from the possession of the plaintiff, and carried away, certain property of the plaintiff of the value of $ 1,800, and converted the same to his own use, and that by reason thereof the plaintiff had sustained $ 4,000 damages.

The answer contained a general denial, and alleged that Francis Meixner was at the time the owner of the property, and that the same was taken by defendant as sheriff of Milwaukee county upon an execution issued to him August 28, 1877, upon a judgment previously rendered against Meixner, subject to a chattel mortgage of $ 375 upon a portion of the goods in favor of Peitsch, which goods had been taken from him upon the mortgage.

Upon the trial, the plaintiff admitted that he obtained the property from Meixner upon a bill of sale, executed, bearing date and delivered June 16, 1877, expressing a consideration of $ 3,000, covering all the property then used or kept by Meixner in his business; that he had thereby assumed the chattel mortgage to Peitsch; that he paid nothing down, but released a chattel mortgage of $ 700 on the goods, held by himself; that the next day he gave to Meixner his four notes for the balance ($ 1,925), payable one, two, three and four years from date; and that afterwards, on the same day, he learned that Schmidt also had a chattel mortgage on the goods for $ 300, which Meixner had forgotten to mention, and so he assumed that also, and one of the notes so given was thereupon destroyed, and another given in its place, so that the final balance to be paid by the plaintiff, as represented by the notes, was $ 1,625, payable as above stated.

Thus the issue presented was, whether the sale from Meixner to the plaintiff was made with the intent to defraud the then existing creditors of Meixner, including the plaintiffs in [51 Wis. 74] the execution. Upon that issue the trial court required the jury to answer thirty-seven distinct questions submitted to them. The statute provides that such special verdict "shall be prepared by the court in the form of questions in writing, relating only to material issues of fact, and admitting a direct answer, to which the jury shall make answer in writing." Section 2858, R. S.

In Hutchinson v. R'y Co., 41 Wis. 541, it was held, per LYON, J., that, "in the absence of a general verdict, the special findings should include all of the material issues made by the pleadings;" and in the same case it was in effect held, that undisputed questions of fact did not constitute a material issue. Williams v. Porter, 41 Wis. 422; McNarra v. R'y Co., 41 Wis. 69.

In Davis v. Farmington, 41 Wis. 425, LYON, J., said that the right to a special

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verdict under this statute was "necessarily limited to material and controverted questions of fact. "

In Carroll v. Bohan, 43 Wis. 218, RYAN, C. J., said: "The statute providing for special verdicts is an excellent one, tending to dispel the occasional darkness visible of general verdicts. But special verdicts are worse than useless if courts do not submit for them single, direct and plain questions, and insist upon positive...

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