Mayers v. Kaiser

• Decision Date: 23 May 1893
• Citation: 55 N.W. 688,85 Wis. 382
• Parties: MAYERS v. KAISER ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 382

55 N.W. 688

MAYERS

v.KAISER ET AL.

Supreme Court of Wisconsin.

May 23, 1893.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Charles G. Mayers, as receiver, against M. Kaiser and others. Defendants had judgment, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

The plaintiff, as receiver of the goods and property of the defendant M. Kaiser, appointed in proceedings supplementary to execution on a judgment for $564.67, recovered against him by one Talcott, August 21, 1885, in the circuit court for Dane county, brings this action, in the nature of a creditor's suit, against the said M. Kaiser; Jennie Kaiser, his wife; Joseph and Julius Kaiser, his sons; and Samuel Spiegel,--to reach, and subject to the payment of said judgment, certain real estate, the legal title to which is vested in his said wife, and a stock of goods and business of a store in Madison called “The Fair,” carried on in her name, but in reality, as alleged, for and upon the credit of said judgment debtor, which stock of goods had been sold and transferred to his said two sons and his son-in-law, and it was alleged that said business had been carried on by said judgment debtor, pretending to act as his wife's agent, under some arrangement with his wife, for the purpose of cheating and defrauding his creditors, including said Talcott; that she did not in good faith engage in business with her separate property, and did not in good faith employ her said husband to conduct such business for her as her agent; that she had never actively participated in the conduct of the business, and had little or no knowledge concerning it; that her husband had in all respects conducted it as his own, with the single exception that in doing so he had pretended to act as the agent of his wife. It was charged that the real estate held by the wife had been purchased with the proceeds of such business, which, it was alleged, had been large and profitable, and that said stock of goods and business had been fraudulently transferred to the said sons and son-in-law, who had previously been employed therein as clerks, with intent to defraud the creditors of the said judgment debtor. It was charged that the business and stock in trade of the said judgment debtor with which he had carried on business in Chicago until October, 1883, had been sold out upon judgments by confession,--one in favor of his wife, on a note of $1,500 she held against him, and one in favor of one Altheimer, his brother-in-law,--and had been purchased by one Wolf, as assignee of such judgments, in fact for the benefit of the judgment debtor; that the said notes were given, judgments entered, and sales made, for the purpose of covering up the property of the judgment debtor, and to prevent creditors from levying on it, and as a part of a scheme for defrauding his creditors, and that said Talcott was one of his creditors at the time; that these goods, and others purchased on his credit, were sent to Madison, and with them the business of the Fair was opened, and carried on, in the name of his wife. The answers of the judgment debtor and his wife insist that the notes to her and Samuel Altheimer were given for an actual indebtedness for those sums, respectively, and deny that they were given or used for any fraudulent or improper purpose, and deny, generally and specifically, all the charges of fraud stated in the complaint, and allege that the purchase of said goods was for the benefit of said Wolf, and that they were afterwards sold to the wife of the judgment debtor, and placed in the store where, ever since November, 1883, or thereabouts, she had carried on business. It is denied that any goods therefor were bought on the credit of her husband, and stated that all the goods had been purchased in the name and for the benefit of his wife, and the business carried on entirely with her means, and for her benefit; that the connection of the judgment debtor therewith was solely as her agent, and not for his benefit in any way, he working for her upon a regular salary; that the stock of goods in the Fair store did not exceed in value the sum of $5,000, and that the real estate which stood in the name of the wife was her home, and was heavily mortgaged; that the facts relative to said business, and to the manner in which judgments in favor of the wife and Samuel Altheimer were obtained, were fully investigated and known to Talcott in 1883, and the six-years statute of limitations was relied upon as a bar; that it was agreed that the goods purchased at said sale should be managed and sold out by Wolf for the common profit of him and Altheimer, and it was finally sold to the wife of the judgment debtor, she giving her note for what it had cost him; that the stock in trade and business was sold out by her February 15, 1892, for $5,368.23. The answers denied all fraud in said sale. The defendants Joseph Kaiser and Samuel Spiegel set up the circumstances of their purchase, averring that it was for a valuable consideration, and in good faith, without any intent to defraud the creditors of said Kaiser. The examination of the judgment debtor on supplemental proceedings was given in evidence, and also of his wife, in relation to the allegations of the complaint, from which it appeared that the judgment debtor was in business in Chicago from 1867 to 1883, and was in the wholesale business in 1880, doing a large business; that his merchandise was sold at sheriff's sale, and he did not buy in any, nor did his wife; that he owed about $14,000, and he had it reduced to about $6,000; that Marshall Field & Co. closed him up; that the business in Madison had been her business, and he managed it for her, buying most all of the goods on credit; that the bank accounts were kept in his wife's name; that he was her employe, and never put in any money there, or into the property that belonged to his wife; that the money that built the houses came out of the business; that the $1,500 on which she obtained her judgment had been owing her since 1881, and was for a present made to her by her uncles when she was married. The wife of the judgment debtor also testified on the trial to the effect that she purchased Mr. Altheimer's interest in the goods sold at Chicago, and gave him a note for $900. Simon Wolf also testified in regard to the transaction quite fully, and an agreement was produced in evidence between him and Mrs. Kaiser, dated October 15, 1883, in regard to the sale and disposition of said goods, by which Mayer Kaiser, the judgment debtor, was to be engaged as a clerk during a sale thereof at a salary of $25 a week. It appeared that Wolf received his full pay of Mrs. Kaiser December 29, 1884. Kaiser testified that when the business was continued in Madison he took $5 a week for his own use and support; that there was no agreement about salary; that the $25 a week was never paid him. Evidence was given to show that the debt to Altheimer was paid in 1885. Mercantile agency reports were put in evidence regarding the financial standing of J. Kaiser, J. Kaiser & Co., and Kaiser Bros. & Spiegel, covering a period from October 6, 1884, to February 24, 1892, in which the stock was variously stated at from $10,000 to $35,000, and the amount of yearly sales at $50,000 and upwards, net annual gains, $5,000 and upwards, and in which it was stated that the business was conducted by Mayer Kaiser. Kaiser made some of the reports for his wife.

The finding of the circuit court as to the bona fides of the business conducted in the name of Jennie Kaiser, the wife of the judgment debtor, was to the effect that at the time of their marriage she received $1,500, marriage portion. That her husband was in business in Chicago, and lost considerable property in the great fire, after which she loaned her husband part of her marriage portion, which was used in business. That he was owing her $1,500, on account of said loans, October 1, 1883, and the judgment was given on a note for that money. That he was indebted to Marshall Field & Co. in about $3,600, and to S. Altheimer in about $4,700, and to various other creditors. That Field & Co. recovered two judgments against him for their debt, upon which executions were issued, and levied on his property, together with an execution on the judgment in favor of his wife. That the latter judgment was for a full consideration, and was not obtained for the purpose of hindering or delaying the creditors of the defendant M. Kaiser. That more than six years had passed since judgment upon the note in favor of Talcott was rendered, and that the facts concerning its entry were fully known to him, or his agent, immediately after the entry thereof. That the judgment in favor of Altheimer was for a valid, existing indebtedness, and an execution, in like manner, was levied upon Kaiser's property subsequent to the judgments and executions of Field & Co. and Jennie Kaiser. That the agent of Talcott was present at the sale, which was fairly conducted, at public auction, by the sheriff of Cook county. That Wolf purchased and became the owner of the judgment of Field & Co. That there was no surplus after said execution sales. Wolf, Mrs. Kaiser, and...