Friend Bros. Clothing Co. v. Hulbert

• Decision Date: 11 January 1898
• Citation: 98 Wis. 183,73 N.W. 784
• Parties: FRIEND BROS. CLOTHING CO. v. HULBERT.
• Court: Wisconsin Supreme Court

98 Wis. 183

73 N.W. 784

FRIEND BROS. CLOTHING CO.

v.HULBERT.

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action by the Friend Bros. Clothing Company against Herbert H. Hulbert in replevin for possession of certain goods. From a judgment of nonsuit, plaintiff appeals. Reversed.Herman Grotophorst and Samuel Rosendale, for appellant.

R. D. Evans, for respondent.

CASSODAY, C. J.

The complaint alleges, substantially, that the plaintiff is a corporation created and existing under the laws of this state; that Fred, Barney, and Otto Katzky were doing business as co-partners, under the firm name of Fred Katzky & Bros., at Baraboo; that March 29, 1895, and at various times after that date, and up to November 5, 1895, Katzky Bros. stated to representatives of the plaintiff, and to various mercantile agencies which were established for the purpose of obtaining statements and information from merchants and others desiring to obtain goods on credit, as a basis of such credit, that they (Katzky Bros.) were solvent, and worth $10,000 over and above all their debts and liabilities, and in property not by law exempt from execution; that they knew such statements would come to the knowledge of the plaintiff; that June 14, 1895, Katzky Bros. corroborated such statements, and claimed and represented to the plaintiff that they then were, as they had theretofore been, wholly solvent, they well knowing at the time that the previous statements so made by them to the mercantile agencies had come to the knowledge of the plaintiff; that relying upon the truth of such statements, and believing them to be true, and on the faith thereof, and trusting therein, the plaintiff, between March 29 and November 5, 1895, sold and delivered to Katzky Bros. ready-made clothing, at various times between said dates, upon credit, to the amount and value of $9,349.76, of which Katzky Bros. had paid no part, except the sum of $3,752.76, leaving due, unpaid, and owing to the plaintiff therefor the sum of $5,597; that such statements so made by Katzky Bros. were false and untrue, and by them known to be so when made, and that they were so made for the purpose of cheating and defrauding the plaintiff out of the value of the said goods or the greater part thereof, and that the plaintiff thereby was cheated and defrauded; that said Katzky Bros., during all said time, were insolvent; that, upon knowledge of such fraud coming to the plaintiff, it elected to, and did, rescind the sales, and demanded a return of the property, which was refused; that thereupon, and on December 20, 1895, the plaintiff commenced this action to recover the property described, or $5,597, as the value thereof, in case a delivery thereof could not be had, together with damages and costs. The defendant, as sheriff, justified the seizure of the goods December 16, 1895, under and by virtue of an execution against F. Katzky Bros., and in favor of Marcus J. Katzky, and that he held possession thereof thereunder, and also under and by virtue of two certain attachments against F. Katzky Bros.,--one in favor of J. Emil Dryfoos, and the other in favor of the Straw-Ellsworth Manufacturing Company. At the close of the testimony, the court granted a nonsuit, on the sole ground that the plaintiff had not returned, nor offered to return, the portion of the purchase money paid to the plaintiff by F. Katzky Bros. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

In view of the rulings of the trial court mentioned, and for the purpose of this appeal, we must assume that there was sufficient evidence to take the case to the jury on the questions of fraud and false representations alleged in the complaint. The first purchase was made March 29, 1895, and amounted to $4,133.20. The amount purchased from that time, to and including August 1, 1895, was only $222.85. The amount purchased in August was $1,964.50. The amount purchased in September was $2,171, and the amount purchased after that time was $858.25, making a total of $9,349.76. The total amount paid and credited during the time (including $244.50 goods taken back, and $416 discount) was only $3,752,50; that is to say, $380.70 less than the first purchase of March 29, 1895. The cash payments were as follows: April 20, 1895, $2,000; June 25, 1895, $800; and November 5, 1895, $500,--making the whole amount of cash paid $3,300. There is evidence tending to prove that the sales of Katzky Bros., during the time, of the goods so purchased of the plaintiff, was $6,674.85; that the goods replevied by the plaintiff, at cost price, was about $6,000; and that their value was from $3,500 to $3,848.75. It is stipulated that the special interest which the defendant, as sheriff, claims in the goods replevied, was $3,445, and their value, for all purposes, $4,000. The real question for determination is whether the plaintiff is barred from recovering any portion of the goods in question, or their value, by reason of its failure to return or offer to return the $3,300 cash so received. If such are the...