Brickley v. Walker

• Decision Date: 12 April 1887
• Parties: BRICKLEY AND ANOTHER v. WALKER.
• Court: Wisconsin Supreme Court

68 Wis. 563

32 N.W. 773

BRICKLEY AND ANOTHER

v.WALKER.

Supreme Court of Wisconsin.

April 12, 1887.

Appeal from circuit court, Portage county.

Action in trover. May 14, 1885, the defendant, as sheriff, seized the lumber in question, a part being at Runkel's mill, and the rest at Brickley's mill, so called, in Portage county, and then appraised at $5,545.38, as the property of Benjamin Brickley, on an attachment in a suit against him, and in favor of one Andrew Wilson, upon a note of $1,210, and interest at 10 per cent. from March 10, 1882. September 12, 1885, the plaintiffs, claiming to be the owners of said property at the time of said seizure, commenced this action against the sheriff for damages by reason of the alleged unlawful seizure and conversion of said property. The defendant, answering, justified under such attachment. At the close of the trial, and on March 4, 1886, the jury returned a verdict in favor of the plaintiffs, and against the defendant, for the sum of $4,140.23 damages. From the judgment entered thereon the defendant brings this appeal.Raymond & Haseltine, for respondents.

Houghton & Haddock and C. W. Felker, for appellant.

CASSODAY, J.

The merits of the controversy were involved in the question whether the lumber attached was, at the time, the property of the plaintiffs, or in fact the property of Benjamin Brickley. The verdict rendered, necessarily found it to be the property of the plaintiffs. Such verdict is challenged as not being supported by the evidence. It must be confessed that there are suspicious circumstances connected with the alleged acquisition of title by the plaintiffs. The plaintiff Augusta is the wife of Benjamin Brickley, and the other plaintiff, Sarah C. Brickley, is their daughter. In 1875, Benjamin Brickley was in good circumstances. His mill interest at Brickley was worth $3,000, and, besides, he owned five or six hundred acres of good pine land. In 1879 he was in partnership with one Otto, doing business at the Brickley mill. In that year, Benjamin being deeply insolvent, Otto sold out his interest in the mill and business to Segelke, Kohlhous & Co., then doing business at La Crosse, and who seem to have acquired title to the whole property, and thereafter conducted the whole business at Brickley mill. About the same time, Benjamin became a silent partner in that firm, and continued such until his interest was sold to Thomas Petty in 1882, from which time the proprietors of the mill and business at Brickley were known as Segelke, Petty & Co. On the part of the plaintiffs there is evidence tending to prove, in effect, that May 12, 1875, Augusta obtained $300 from her father's estate, and then loaned the same to her husband; that in 1874, and when Sarah was 16 years of age, she went to teaching school in different parts of the country, and in doing so accumulated a little property; that October 27, 1877, a contract was made by her, or in her name, with Hungerfords, for 40 or 50 acres of land, and for which she paid some $300; that, during the years 1877-79, she caused logs to be taken from that land, and sawed by Otto & Brickley at the Brickley mill, and sold the lumber at a profit; that, during the years 1879-80, Augusta boarded the hired men of Segelke, Kohlhous & Co. at Brickley, under a contract with them whereby she was to have one-half of the net profits, and that she received from them, under that contract, as such profits, $768.45; that, about the same time, she received from her husband the $300 loaned him in 1875, and interest, amounting to $465; that, about the same time, Augusta let Sarah have $1,200; that, about the same time, Sarah and one George Attenburg bought of the Ringles the pine timber on some 440 acres of land,--she paying for her share some $1,700; that, from her share of the pine on the Ringle lands, she sold large quantities of logs, and had large quantities manufactured into lumber by Segelke, Kohlhous & Co., receiving therefrom large profits; that November 25, 1881, Augusta bought 160 acres of pine lands from Gerhart, paying therefor $300, which was received by her from Sarah; that October 11, 1882, Augusta bought of Hanchetts 160 acres of pine lands, paying therefor $250; that, from the lands so bought by Augusta, large quantities of logs were taken by her, and manufactured into lumber, and sold, and from which she realized large profits; that October 29, 1883, Sarah contracted with Powell for 40 acres of pine land, and from which logs were taken by her, and manufactured and sold; that from July 25, 1883, to October 25, 1883, Augusta had insurance upon lumber piled in the yard, and coming from such lands, to the amount of $3,000; that from May 13, 1884, to August 13, 1884, Augusta had an insurance upon lumber piled in the yard, and coming from such lands, to the amount of $4,200; that Augusta and Sarah never had any settlement; that the lumber attached in this action came from their respective lands, or was purchased by them or in their name; that in making such purchases, getting in such logs, manufacturing such lumber, and selling the same, Benjamin generally acted as the agent of his wife and daughter respectively, and received from them compensation for such service. We cannot go into the details of the evidence, nor any seeming conflict or inconsistencies. While there are some suspicious circumstances connected with the acquisition of title, yet we do not feel authorized to hold, as a matter of law, that such titles were so acquired with the intention of hindering, delaying, or defrauding the creditors of Benjamin Brickley. On the contrary, we must hold that the evidence is sufficient upon the merits to sustain the verdict. This brings us to the consideration of the numerous errors assigned.

1. Was the complaint sufficient? Where there is no demurrer to the complaint, and its sufficiency is first raised by objection to evidence at the trial, it must be liberally construed. So construed, we must hold this complaint sufficient. It alleges the ownership of the property by the plaintiffs, and its value, the unlawful conversion and disposition of the same by the defendant to his own use, and to the damage of the plaintiffs. The title was put in issue, and fully tried upon the merits. We cannot disturb the verdict merely by reason of the failure to allege that the plaintiffs were at the time in possession, or entitled to the immediate right to the possession. An allegation of ownership under such circumstances, and after such verdict, must be deemed to include the immediate right to the possession.

2. The insurance policies on lumber in the yard in 1883 and 1884 seem to have been properly admitted in evidence. Their materiality is not very apparent, it is true, but under the circumstances, and in view of the fact that the husband and father was ostensibly managing the business, we think it was not objectionable to show just how it was treated by them, respectively, during the time. At least, it presents no material error.

3. For the same reasons it was competent to show the sources from which the daughter obtained the moneys with which to buy the lands or timber from which some of the lumber in question came. The same was true with respect to to the wife.

4. The court properly excluded the testimony of Segelke, one of the witnesses for plaintiff, on cross-examination, as to the contents of the books of the firm at La Crosse in relation to the boarding-house account, and as to whether the boarding-house profits were paid or charged in those books to Benjamin, without showing the knowledge or acquiescence of Augusta in the keeping of such accounts, or in any way connecting her with them. If her contract with the firm was valid, then no one could destroy its effect by admissions made without her knowledge or consent.

5. The same is true in respect to the exclusion of the entries in the books of Anthony Arieus, who operated the Runkel mill, respecting a saw-bill against Benjamin and his wife. The same is true respecting the account and books of Segelke, Petty & Co., of a saw-bill of part of the lumber in controversy kept by that firm in the name of Benjamin. There was no evidence tending to show the knowledge of or acquiescence in the making of such entries or accounts by either of the plaintiffs, or in any way connecting either of the plaintiffs with the making of either of such entries or accounts, except that the wife did learn that the saw-bill was run in her name for one year, and after that in the name of her husband; and that, when the daughter learned that the saw-bill had been kept in the name of her father by Segelke, Petty & Co., she insisted upon having the books altered so that the account should be with her. We do not understand that the defendant was precluded from showing anything he could by legitimate evidence tending to prove an admission on the part of either of the plaintiffs to the effect that Benjamin was the real owner of any of the lumber attached.

6. The mere fact that Benjamin was insolvent at the time did not preclude him from exercising his legal right of paying his wife, in preference to his other creditors, the money which he or his firm had borrowed of her in 1875. There was no law against such preference. If the money was borrowed and repaid in good faith, then there would seem to be no valid reason for depriving her of the benefit of it; and the instructions requested, inconsistent therewith, were properly refused. The jury were, in effect, charged to scrutinize closely and carefully all transactions and dealings between the husband and wife. They found, in effect, that it was the repayment of a bona fide debt.

7. Exception is taken because the court charged the jury to the effect that the wife might as legally contract with the firm of Segelke, Kohlhous & Co. as with a stranger for the running of a boarding-house for such firm, notwithstanding her husband was at the time a member of...