Kalk v. Fielding
| Citation | 7 N.W. 296,50 Wis. 339 |
| Parties | KALK v. FIELDING |
| Decision Date | 10 November 1880 |
| Court | Wisconsin Supreme Court |
Argued October 13, 1880
APPEAL from the Circuit Court for Racine County.
Replevin for a stock of goods. The case is thus stated in part by Mr Justice TAYLOR:
The court gave the following instructions at plaintiff's request: 1. A debtor may mortgage his property to one creditor in preference to any other creditors to secure the payment of any actual indebtedness, and such mortgage, when made in good faith, is not fraudulent. 3. The fact that plaintiff is the father of the mortgagor raises no presumption of fraud, if such mortgage was given and received in good faith to secure an actual indebtedness and without intent to hinder, delay or defraud creditors. 4. If the mortgagor was actually indebted to the plaintiff upon the notes in evidence, and the plaintiff took the mortgage in good faith for the purpose of securing the payment of said notes, and not as a mere cover or device to delay, hinder or defraud creditors, then the mortgage is valid. 5. If you should find that the mortgagor intended to hinder, delay or defraud his creditors at the time when the chattel mortgage was executed and delivered, but that the plaintiff did not share in or was not aware of such intent, but took the mortgage for the purpose of securing the indebtedness due him, then the mortgage is valid and you must find for the plaintiff. As the 6th instruction, the plaintiff requested the court to read to the jury sec. 2314, R. S., which was done. The court refused to instruct the jury at defendant's request, that the burden of proof was on the plaintiff, and that before he could recover he must have established, by a preponderance of evidence, that the mortgage was given in good faith to secure payment of an actual indebtedness, and not with the intent to place the mortgagor's property beyond the reach of his other creditors.
The case is further stated in the opinion.
Plaintiff had a verdict and judgment, and defendant appealed from the judgment.
Judgment reversed and cause remanded for new trial.
For the appellant there was a brief signed by Fish & Dodge and John B. Winslow, and oral argument by Mr. Fish and Mr. Winslow.
For the respondent there was a brief signed by S. & A. S. Ritchie and H. V. Van Pelt, and oral argument by A. S. Ritchie.
The appellant assigns twelve grounds of error: 1. The court erred in sustaining plaintiff's objection to questions calling for communications by letter between plaintiff and his son, C. F. Kalk, and questions calling for oral communications between plaintiff and said C. F. Kalk, and as to the intention of plaintiff; also in its statement to jury in folio 63. 2. The court erred in sustaining plaintiff's objection to questions in cross examination of James Fielding as to what was being done with the goods at the time of the attachment, and as to statements of Kaempfer, C. F. Kalk's clerk; also in striking out evidence of Kaempfer's statements. 3. The court erred in sustaining plaintiff's objection to questions to Charles Baumbach as to the person from whom the goods in controversy were purchased, and as to statements made by C. F. Kalk for the purpose of obtaining credit. 4. The court erred in sustaining plaintiff's objection to comments of defendant's attorneys on the non-production of C. F. Kalk as a witness, and in charging the jury to consider only the evidence. 5. The court erred in holding the mortgage valid on its face, and in so instructing the jury, and in refusing to give the third and fourth instructions requested by defendant. 6. The court erred in holding that the burden of proof to establish fraud was upon the defendant, and in so instructing the jury, and in refusing to give the second instruction requested by defendant. 7. The court erred in giving to the jury the first and fourth instructions requested by plaintiff. 8. The court erred in giving to the jury the third instruction requested by plaintiff. 9. The court erred in giving the fifth instruction to the jury requested by plaintiff, and in modifying the seventh instruction asked by defendant. 10. The court erred in giving to the jury the sixth of the instructions requested by plaintiff, and in reading to the jury section 2314, R. S. 11. The court erred in overruling defendant's motion to set aside the verdict and for a new trial. 12. The court erred in taxing as costs in favor of plaintiff the items set out in folios 111 and 112, except as modified (folio 113).
The first error assigned is the rejection of the evidence offered by the defendant upon cross examination of the plaintiff, first, as to what information he had received from his son just before he took the mortgage, by a letter addressed to and received by him; and second, as to a conversation had between the plaintiff and his son, the mortgagor, shortly after the mortgage was given. The plaintiff, as a witness on his own behalf, had answered that he had received a letter from his son the 17th or 18th of February, 1879. The mortgage was given on the 19th of that month. The counsel for the defendant then asked whether the plaintiff had that letter with him, and he replied that he had not; that he left it at home. Counsel then put the following questions, which were objected to by the plaintiff, and the objections sustained: "What did that letter say to you?" "Did that letter inform you that he was about to be sued, and you had better send a man there?" My own opinion is that the objections were properly sustained, upon the ground that the questions called for the contents of the letter; that the letter was the best evidence, and should have been produced, or notice to produce the same should have been given, before the contents could be proved by the oral testimony of the witness. The other members of this court are inclined to hold that the question should have been answered, for the reason that the object of the question was to elicit the fact that the plaintiff had information from his son that he was about to be sued, and that he had better see about his own claim; that the fact that he had obtained such information was material, and it was immaterial whether he had received the information by letter or otherwise; that, the letter being in possession of the plaintiff, if the defendant was willing to rely upon the plaintiff's recollection as to its contents, the plaintiff had no reason for objecting that the letter was the best evidence; that such objection, under the circumstances, was one which could affect only the rights of the defendant, and he might, if he saw fit, waive it.
Upon the further cross examination of the plaintiff, it appeared that the mortgagor and the plaintiff had an interview shortly after the mortgage was given and before the attachment was levied. The defendant's counsel asked the following questions, which were objected to by the plaintiff, and the objections sustained by the court: "Did he say anything to you about how much his receipts were, when he was there to see you?" "Did you learn from your son that there were bills in the hands of attorneys for collection against him?" "Did he tell you the amount of sales that were being made?" We are of the opinion that these were proper questions on the cross examination of the plaintiff, and that the court erred in sustaining the plaintiff's objections. The defendant was attacking the bona fides of the mortgage claim of the plaintiff, and insisting that it was not given in good faith for the...
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