Gage v. Chesebro

• Decision Date: 27 May 1880
• Citation: 5 N.W. 881,49 Wis. 486
• Parties: GAGE and another v. CHESEBRO, Garnishee
• Court: Wisconsin Supreme Court

5 N.W. 881

49 Wis. 486

GAGE and another v. CHESEBRO, Garnishee

Supreme Court of Wisconsin

May 27, 1880

Argued May 11, 1880

APPEAL from the Circuit Court for Fond du Lac County.

This was an action of garnishment, begun at the same time as the principal action, January 9, 1879. The garnishee and the principal defendant, E. B. Hunting, answered severally denying the garnishee's liability; and issue was joined upon the answers. The question was as to the title of a stock of goods and a quantity of accounts, or their proceeds which, prior to January 4, 1879, had belonged to the principal defendant, and on that day came into the garnishee's possession under what he claims to have been valid transfers of title from the principal defendant. The questions litigated were, whether the transfers were made in good faith and for a valuable consideration, and whether the instrument under which the garnishee claimed title to the stock of goods, was valid. This instrument, which appears to have been filed in the proper clerk's office on the day last above named, was as follows:

"Whereas I am justly indebted to Washington Chesebro on two promissory notes for six thousand dollars each, dated December 31, 1874 one payable in six months and one payable in twelve months after date, each drawing interest at ten per cent., and upon which no payments have been made, but I claim an offset, to apply in reduction thereof, of the sum of $ 665.30 by way of store account charged on my books against him:

"I am also conditionally indebted to him as co-indorser with my father, Israel Hunting, upon the following notes made and used by me:

"One note for $ 1.300, dated November 15, 1878, payable ninety days after date at the First National Bank of Fond du Lac:

"One note for $ 2,200, payable ninety days after date at the First National Bank of Fond du Lac, and dated December 20, 1878:

"One note for $ 2,000, dated January 3, 1878, payable one year after date, with interest at ten per cent., now held and owned by Mrs. Christiana Lewis, but to which I claim an offset of $ 44.79, due on store account from Mrs. Lewis to me:

"Now be it known, that, for the purpose of fully securing the said Chesebro against any loss by reason of the said notes and the said indorsements or either of them, I do hereby sell transfer, assign, set over and mortgage unto the said Chesebro, his heirs and assigns forever, all my stock in trade, wares, merchandise and fixtures, of every kind, quality and description, situated in the store occupied by me in the city of Fond du Lac, Wisconsin, and known as No. 486 on Main street in said city, and also my two peddling carts or wagons used by me in and about my business, with the contents thereof, consisting of a general assortment of Yankee Notions and merchandise of the same kind and quality kept in my store, and being part and parcel of my stock in trade, together with the teams and harnesses belonging thereto.

"And I hereby authorize the said Chesebro, his heirs and assigns, to enter into the immediate possession of the mortgaged property and every part and parcel thereof, and take and hold the same to his and their proper use, benefit and behoof forever.

"Subject however to the following conditions:

"That the said Chesebro, his heirs and assigns, may, whenever he or they shall choose so to do, proceed and sell so much of the said mortgaged property for cash, either at public or private sale or both, and at wholesale or retail or both, as will best promote the interest of all concerned, and secure the largest price at the least expense, and as may be necessary to pay the said first two notes, with the interest thereon, after deducting therefrom the offset claimed by me as aforesaid, and also to pay the reasonable costs and expenses attending such sale; and thereafter shall hold possession of the mortgaged property remaining unsold until the maturity of the said several notes as aforesaid; and whenever and as fast as either of said notes shall mature and I shall have neglected to pay the same, then the said Chesebro or his heirs and assigns are authorized to proceed and sell of the remaining mortgaged property, in the same manner and subject to like restrictions, sufficient to raise money enough to pay the same, with interest and costs and expenses attendant upon such sale,--except that in the payment of the note of Mrs. Lewis the offset aforesaid shall be deducted from the amount of said note.

"And after the whole amount of said notes and interest, less the offset aforesaid, shall be fully paid, and the cost and expenses of executing this mortgage and taking care of said mortgaged property shall be fully paid, the said Chesebro, his heirs and assigns, shall render the remainder of said mortgaged property, if any there be, and any surplus of cash arising from the proceeds of sales, if any there be, to me.

"In witness whereof, I have hereunto set my hand and seal, at Fond du Lac, this 2d day of January, 1879.

"In presence of E. B. HUNTING [SEAL.]

"THOS. W. SPENCE.

"WM. SCHLEIDEN."

At the trial, T. W. Spence, Esq., as a witness for the plaintiffs, testified that he signed as a witness the instrument above set forth, and was one of Chesebro's attorneys who put in his answer as garnishee in this case. The witness was then asked whether the answer of the principal defendant was drawn in his office and under his direction; whether he had been Hunting's attorney in his general business prior to January 4, 1879, etc.; but the questions were objected to by defendant, and ruled out. Another objection to the rulings of the court upon evidence offered, is sufficiently stated in the opinion.

The court refused to instruct the jury at plaintiffs' request, that the instrument above set forth was void on its face, or that the evidence showed the garnishee to have come into possession of and collected accounts owing to the principal defendant, to an amount greater than plaintiffs' judgment against said defendant, and without the garnishee having any title to or lien upon said accounts. There was a verdict for the defendant; a new trial was refused; and plaintiffs appealed from a judgment on the verdict.

Judgment affirmed.

The cause was submitted for the appellants on the brief of Shepard & Shepard.

For the respondent there was a brief by Coleman & Spence, his attorneys, with Edward S. Bragg, of counsel, and oral argument by Mr. Spence.

OPINION

ORSAMUS COLE, J.

We are of the opinion that the judgment in this case must be affirmed. The learned counsel for the plaintiffs attacks with much force of argument, the validity of the instrument executed by Hunting, wherein he transfers the property there described to the garnishee. He insists that it is in the nature of an assignment for the benefit of creditors, and is void on its face because it does not conform to the statute regulating voluntary assignments. But we do not agree with ...