Connolly v. Straw

• Decision Date: 13 December 1881
• Citation: 11 N.W. 17,53 Wis. 645
• Parties: CONNOLLY, JR., v. STRAW AND OTHERS.
• Court: Wisconsin Supreme Court

53 Wis. 645

11 N.W. 17

CONNOLLY, JR.,

v.STRAW AND OTHERS.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Milwaukee county.

The circumstances out of which this action arose are briefly as follows: In 1879 the firm of Connolly & Matzek, of which the plaintiff was a member, were retail dealers in hats, etc., in the city of Milwaukee, and were indebted for merchandise to the defendants, constituting the firm of Straw, Ellsworth & Brandt, of that city. The latter firm commenced an action for their debt against Connolly & Matzek, sued out an attachment, and by virtue thereof the sheriff seized the entire stock in trade of the debtors. The action was prosecuted to judgment and execution, and the stock so seized, except the goods in controversy in this action, was sold under the execution. The proceeds of the sale were not sufficient to pay the judgment. The deficiency is over $200. Intermediate the seizure and sale the present plaintiff selected from the stock goods of the value of $200, which he claimed were exempt by law from seizure and sale, and placed the same in the store of the judgment creditors, who are the present defendants. After the sale of the balance of the stock the plaintiff demanded such goods of the defendants, but they refused to surrender the same to him until he should pay the amount remaining unpaid on their judgment against Connolly & Matzek. The plaintiff thereupon brought this action to recover the possession of the goods.

The testimony given on the trial on the part of the defendants tended to show that they denied the plaintiff's right to any exemptions in the stock seized by them, and allowed him to select a portion of the stock only, upon condition that he would pledge the goods selected as security for any deficiency that might remain, after applying upon their judgment the proceeds of the sale; and that the plaintiff agreed to such condition, and deposited the goods with the defendants pursuant thereto. The testimony of the plaintiff tends to show that the goods were not thus pledged, but were placed in the store of the defendants merely for storage. All of the witnesses for the defendants, whose testimony tended to prove that the goods were thus pledged, were attorneys at law. The plaintiff alone testified to the contrary. The circuit judge instructed the jury as follows:

“ Gentlemen: The only important fact for you to settle here is the question as to whether Mr. Connolly has, in a legal and proper manner, so as to divest himself of any right to this exempt property, turned it over as a pledge to the creditors, the defendants in this case. There is no doubt in the law that a man may do it; and, if he does it fairly, freely, and understanding what he is doing, it is a waiver of his right to exemption.

In this case it seems that the creditors had these goods that were claimed to be exempt in their possession under an attachment, and there was nothing more done with them, except simply separating some part of them and putting them back again into the plaintiff's possession. You have heard Mr. Connolly's statement of the matter. He says he sent them down there for safe-keeping, and claims that he never turned them out at all in any way, and received nothing for them, but claims that he had a title outright to these exemptions. On the other hand, the defence, engaged in the collection of this claim, have testified to a different state of facts. [Some comment has been made here about the fact that three or four attorneys have been witnesses in this case. I do not know that any court has ever decided that a lawyer cannot tell the truth; but the courts have always deprecated the fact of attorneys being witnesses in a case. It is regarded unprofessional; not but what attorneys may necessarily and occasionally be witnesses, but if they are witnesses generally, they put themselves in the position of the parties, and they become parties in testifying in the case, and the courts look upon that, not as to their testifying falsely, but unprofessionally, and I would say, in the presence of the bar here to-day, that I think it would be better for the profession at large that attorneys would so manage their cases that they would not have to come into court to swear them through.] I mean to say, it does not follow that they do not tell the truth, by any means. I don't refer to it in that respect at all. I refer to it more for the purpose of correcting a practice which is deprecated by the courts.

This is simply a question of fact for you to decide, and that is all there is of it. [If there has not been a fair, square, deliberate waiver, understanding fully the pledging in the law of this property, then the plaintiff can recover;] but if he has done it fairly, squarely, and deliberately, as the defendants here claim, then, as a matter of course, he cannot recover. That is all there is of the case.”

Due exceptions were taken to the portions of the charge included in brackets. Verdict and judgment for the plaintiff. The defendants appeal.

G. W. & A. W. Lakin, for respondent.

Williams & Elliott, for appellants.

LYON, J.

The controlling question of fact litigated on the trial was: Did the plaintiff pledge the goods in controversy to the defendants, to secure payment of the balance of the judgment which remained unpaid after application of the proceeds of the execution sale? The only witnesses called by defendants,...