Lee v. Simmons

• Decision Date: 16 March 1886
• Citation: 27 N.W. 174,65 Wis. 523
• Parties: LEE AND OTHERS v. SIMMONS.
• Court: Wisconsin Supreme Court

65 Wis. 523

27 N.W. 174

LEE AND OTHERS

v.SIMMONS.

Supreme Court of Wisconsin.

Filed March 16, 1886.

Appeal from circuit court, Fond du Lac county.

This is an action of replevin. The court found, in effect, (1) that February 8, 1883, the plaintiffs were, and for a long time had been, merchants in New York; (2) that on the day named the defendant's assignor, Whittelsey, was, and for several years next prior thereto had been, a merchant at Fond du Lac; that during that time he had purchased goods from the plaintiffs, and had always been in good standing and credit with them, and continued to be up to February 27, 1883; (3) that February 8, 1883, Whittelsey gave to the plaintiffs' traveling agent a verbal order for the goods in question, and about the same time another verbal order for goods of the value of $24.51; that the order last named was shipped by the plaintiffs about February 14, 1883, by express, with charges prepaid, and was delivered to Whittelsey by the express company, February 22, 1883; (4) that the plaintiffs shipped the goods in suit to Whittelsey by railroad, and they arrived at the depot in Fond du Lac after the day and date of his assignment; (5) that February 27, 1883, Whittelsey made an assignment of all his property to the defendant for the benefit of his creditors, (6) including the goods in suit; that his debts then amounted to $36,000, and his assets only $26,500; that the preferred debts scheduled in the assignment amounted to $19,000, including particular friends and relatives of the assignor; that the bill for the goods in suit was scheduled among Whittelsey's unpreferred creditors; that February 28, 1883, the defendant, as such assignee, demanded the goods in suit from the railway company, and received and took them into his possession; (7) that thereupon, and prior to the commencement of this action, the plaintiffs demanded the goods in suit from the defendant, but he neglected and refused to deliver up the same; (8) that said goods were then of the value of $809.58; (9) that the plaintiffs always believed said Whittelsey to be solvent up to the day of his said assignment, and that they had no knowledge or information that he intended to make an assignment, or had made an assignment, until after the defendant had taken actual possession of the goods in suit; (10) that when said Whittelsey ordered the goods in suit, and from thence down to the time when he made the assignment, he knew he was insolvent and unable to pay for the goods, and was, at the time he ordered the same, contemplating the making of an assignment for the benefit of his creditors, and then knew that an assignment, within a very short time, would become necessary in order to prefer any of his creditors, (chapter 349, Laws 1883, about to be passed,) and that in all probability he could not pay for the goods so ordered; (11) that at the time of the receipt by said Whittelsey of the goods, amounting to $24.51, he knew he was insolvent, and unable to pay for the goods, and did not intend to pay for them; that he then intended to make an assignment for the benefit of his creditors, and knew that he could not pay for the goods, but that the same, if held by his assignee, would go to swell his assets for the benefit of his preferred and other creditors, and deprive the plaintiffs of their goods, or the pay for them, except a dividend; (12) that the plaintiffs sustained six cents damages by the unlawful detention of said goods in suit by the defendant. As conclusions of law the court found, in effect, that the plaintiffs were the owners and entitled to the possession of the goods in suit; that the defendant unlawfully detained the same; that their value was as found; that the plaintiffs had sustained six cents damages by the unlawful detention. From the judgment entered upon such findings the defendant brings this appeal.H. F. Rose and A. M. Blair, for respondents.

George E. Sutherland and D. D. Sutherland, for appellant.

CASSODAY, J.

The facts are undisputed. They appear by the stipulation of the parties, and the testimony of the defendant, his assignor, and his clerk. They more than justify the findings as above stated. From these facts we think the court was justified in holding that the purchase was fraudulently made. Where, as here, a person orders goods knowing himself to be insolvent, without disclosing his insolvency, and with the preconceived purpose of not paying for them at all, or, at most, only a very small per cent., and with further preconceived purpose of having them swell his assets for the benefit of those whom he intends to make his preferred creditors, the purchase is fraudulent, and the vendor, upon discovering the fraud, may rescind the contract, and retake the goods, as against the vendee....