Gore v. Sklute
| Decision Date | 22 September 1896 |
| Citation | 68 N.W. 396,94 Wis. 65 |
| Parties | GORE v. SKLUTE (BRUCKER, GARNISHEE). |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.
Garnishment by George P. Gore against Peter Brucker, garnishee of A. Sklute. Proceedings dismissed, and plaintiff appeals. Affirmed.
It appears from the record and the findings of the court, in effect, that May 31, 1894, the defendant Sklute gave to one Feldman a chattel mortgage purporting to secure the payment of a note for $3,343.76, due May 23, 1895, held by Feldman, and was executed with an oral agreement between the parties thereto that Sklute might remain in possession of the property, and continue to sell the same in the usual course of business, and apply the proceeds to his own use, without accounting to Feldman therefor; that June 7, 1894, Sklute executed another chattel mortgage to Feldman for $1,200, subject to the one of May 31, 1894, without any consideration as between Sklute and Feldman; that on the same day, to carry out the purpose in executing that mortgage, Feldman assigned both of said mortgages to Lapidus, without any consideration as between Lapidus and Feldman; that, at the time of making such assignment, Sklute was actually indebted to Lapidus in the sum of $800, and that Lapidus was also an indorser on Sklute's note of $500, due June 24, 1894; that Lapidus took the assignment in good faith, without any knowledge or notice on his part of any fraudulent intent between Sklute and Feldman, and without notice of the agreement that Sklute might sell the goods, and apply the proceeds to his own use, without accounting to Feldman, and that the assignment was taken to secure a bona fide indebtedness actually due Lapidus from Sklute for the sum of $800, and no more; that thereupon, and on June 7, 1894, Feldman and Lapidus delivered both mortgages to the garnishee, Brucker, as their agent, with instructions to foreclose the same; that Brucker thereupon took possession of the property under the chattel mortgages, and advertised the same for sale; that the plaintiff, having a judgment against Sklute for $2,048.09, and upon an affidavit in their behalf, garnished Brucker, June 13, 1894; that Brucker, as such agent, then had the custody and possession of a part of the property described in the mortgages to the amount and value of $1,300; that Brucker then agreed with the attorneys for the plaintiff that he would not sell said property, unless properly indemnified; that, as Feldman and Lapidus failed to so indemnify him, he voluntarily delivered said property to Lapidus and Feldman, who sold the same, under the notice given by Brucker, for $1,300, which was the fair market value of the same; that July 12, 1894, Brucker answered to the garnishee, and denied all liability; that the plaintiff thereupon took issue with such answer; that, at the close of the trial of such issue, the court found, in effect, the facts stated, and also found that the mortgage of May 31, 1894, was executed with the intent to cheat, hinder, delay, and defraud other creditors of Sklute; that the mortgage of June 7, 1894, was valid to the extent and amount of $800, and no more, which amount was actually due Lapidus from Sklute; and that Sklute was not indebted to Lapidus beyond that amount; that the answer of the garnishee, Brucker, was true. As conclusions of law, the court found, in effect, that the mortgage of May 31, 1894, was fraudulent and void as to the creditors of Sklute; that the mortgage of June 7, 1894, was valid to the extent and amount of $800; that the garnishee, Brucker, was not liable as garnishee of Sklute; and that the garnishee proceedings against him should be dismissed; and it was thereupon ordered that judgment be entered accordingly. From the judgment entered thereon, accordingly, the plaintiff brings this appeal.
Duffy & McCrory, for appellant.
Phelps & Watson and Maurice McKenna, for respondent.
CASSODAY, C. J. (after stating the facts).
Each of the chattel mortgages mentioned contained the...
To continue reading
Request your trial
-
Eau Claire Nat. Bank v. Chippewa Valley Bank
...Co., 60 Wis. 296, 307, 19 N. W. 72, 50 Am. Rep. 369;Gleason v. South Milwaukee Nat. Bank, 89 Wis. 534, 536, 62 N. W. 519;Gore v. Brucker, 94 Wis. 65, 69, 68 N. W. 396;Hussa v. Sikorski, 101 Wis. 131, 135, 76 N. W. 1117. In Bates v. The Railway the attempt was made by garnishment process, se......
-
Hussa v. Sikorski
...to secure the money in the hands of Hickisch, we refer to the cases of Bates v. Railway Co., 60 Wis. 307, 19 N. W. 72, and Gore v. Brucker, 94 Wis. 65, 68 N. W. 396, where the following language from a Massachusetts case is quoted with approval: “We think it never could have been the intent......
- In re H. Penner Co.