Anstedt v. Bentley

• Decision Date: 16 December 1884
• Citation: 21 N.W. 807,61 Wis. 629
• Parties: ANSTEDT v. BENTLEY.
• Court: Wisconsin Supreme Court

61 Wis. 629

21 N.W. 807

ANSTEDT

v.BENTLEY.

Supreme Court of Wisconsin.

Filed December 16, 1884.

Appeal from circuit court, Milwaukee county.

Chas. M. Bice, for respondent.

W. J. Turner, for appellant.

TAYLOR, J.

This action was brought by the respondent against the appellant to recover the value of a quantity of personal property which, he claimed, had been unlawfully taken from his possession and converted by the defendant. The appellant justified the taking of the goods as sheriff of Milwaukee county by virtue of an attachment issued against the property of one F. N. Miller, in an action between one George Dyer, plaintiff, and said F. N. Miller, defendant, and alleges that the goods taken were the goods of said Miller and not the goods of the plaintiff. A trial was had upon the merits in the circuit court before a jury, and a special verdict was taken. After the special verdict was found by the jury, both parties moved for judgment upon such verdict, and upon such motions the court ordered judgment in favor of the plaintiff for the value of the goods taken by the defendant. No motion to set aside the verdict or for a new trial was made in the court below upon the ground that the verdict was not sustained by the evidence, or upon any other ground. After judgment was entered by the plaintiff the defendant appealed therefrom to this court. The defendant having moved for judgment in the court below upon the special verdict, and no motion having been made in that court to set aside the findings of the special verdict on the ground that they were not sustained by the evidence, this court will not, upon this appeal, look into the record for the purpose of determining whether such findings are sustained by the evidence. The findings of the special verdict in such case must be taken as sustained by the evidence, and the only questions to be inquired into upon an appeal from the judgment are such errors, if any, arising upon the trial in the admission or rejection of evidence, in the instructions of the court to the jury, or otherwise in the conduct of the trial. Kirch v. Davies, 55 Wis. 287;S. C. 11 N. W. REP. 689;Hayward v. Ormsbee, 11 Wis. 3;Wheeler v. Pereles, 43 Wis. 341. The learned counsel for the appellant, in his brief and argument, recognizes this state of the case; he does not raise any question upon the evidence, and only assigns as errors certain instructions given by the court to the jury.

The only instruction given to the jury by the learned judge to which any exception is taken by the counsel for the appellant and assigned as error in this court is the following: “I further instruct you, gentlemen of the jury, that the bill of sale in this case must not be adjudged fraudulent as to creditors solely on the ground that it was not founded on adequate consideration, even if you should so find; but you must further find, in order to regard it as fraudulent against creditors, that it was given by the vendor, Miller, with such fraudulent intent, and that the same was known and accepted by the plaintiff to aid in such fraudulent intent.” This instruction was properly given, when applied to the facts in this case. There was no question in the case as to whether the conveyance was made voluntarily and without any consideration as a mere gift. The only question was whether the bill of sale was a fraudulent one, intended to hinder or delay creditors. The evidence clearly shows that it was made upon a valuable consideration, and if not upon a full consideration, certainly upon a consideration so nearly a full one as not in itself to be conclusive evidence of a fraudulent intent. This is all the learned circuit judge intended to or did convey to the jury by this instruction. This is evident from the fact that the learned judge, immediately before giving the instruction now complained of, gave the following instruction, which was also excepted to but not assigned as error in this court, viz.: “You are further instructed, gentlemen of the jury, that a small discrepancy between the price paid, or in this case the amount of plaintiff's bill against said Miller, and the real value of the property conveyed, is no evidence of fraud between the parties. In order to find fraud it must appear to your satisfaction from the evidence that the difference between the value of the property conveyed and the amount of plaintiff's bill was gross, or such as would strike you as out of the ordinary course of dealing between man and man, and in arriving at your conclusion upon this point you must take into consideration all the surrounding circumstances affecting the price of goods, such as the probable expense of converting the same into money, the condition of the market for such goods, as well as the condition and situation of the goods.” Immediately following this instruction is the one above quoted, to which exception was taken, and which is alleged to be erroneous upon the argument in this court.

Taking the two instructions together and there is no error. The instruction excepted to was justified under the statutory rule that fraudulent intent is a question of fact and not of law. Section 2323, Rev. St. 1878; Hyde v. Chapman, 33 Wis. 391-399. I have examined the charge of the learned circuit judge in this case, and am satisfied that it submitted the case to the jury fully and fairly, and not in a way which tended to the prejudice of the defendant; and although, from a careful reading of the evidence as it appears in the record, we might feel inclined to find fault with some...