Norwegian Plow Co. v. Hanthorn

• Decision Date: 17 April 1888
• Citation: 37 N.W. 825,71 Wis. 529
• Parties: NORWEGIAN PLOW CO. v. HANTHORN.
• Court: Wisconsin Supreme Court

71 Wis. 529

37 N.W. 825

NORWEGIAN PLOW CO.

v.HANTHORN.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action by the Norwegian Plow Company against George Hanthorn, sheriff of Rock county, to recover the value of certain agricultural implements taken and converted by the defendant. Judgment for plaintiff, and defendant appeals.Fethers, Jeffris & Smith, for appellant.

Dunwiddie & Golden, for respondent.

TAYLOR, J.

The respondent commenced this action in the municipal court of Rock county to recover the value of certain agricultural implements alleged to belong to the respondent company, which had been taken and converted by the defendant. The answer alleges that the defendant is the sheriff of Rock county, and that he took said property by virtue of an execution which, as such sheriff, he held against W. A. Lints and Byron Atwood; that the property was, at the time of the taking of the same, the property of said Lints & Atwood, and if any transfer of said property had been made to the respondent by Lints & Atwood, or either of them, such transfer had been made with intent to hinder and delay the creditors of said Lints & Atwood, to the knowledge of said respondent; and that said company colluded with said Lints & Atwood in their fraud. After a trial in the municipal court, the case was appealed to the circuit court of Rock county, where the case was again tried by the court and a jury, and a verdict rendered in favor of the plaintiff and respondent for the value of the property. From the judgment entered on such verdict an appeal was taken to this court. On the trial, at the close of the plaintiff's evidence, the defendant moved for a nonsuit, which was denied, and exceptions taken. The ruling of the circuit judge on this motion is alleged as error. It is also alleged that the court erred in the admission and rejection of evidence, and in the instructions given to the jury. The material facts as shown on the trial were that the respondent company had sold the property in question to the firm of Lints & Atwood on credit. That afterwards the firm of Lints & Atwood was dissolved, and the property of the firm was transferred to said Lints, he assuming the debts of the firm. After the dissolution of the firm, and on the 17th day of August, 1886, the general agent of the respondent called upon Mr. Lints for payment or settlement of his account with the company, that the firm of Lints & Atwood was then indebted to the respondent in the sum of $445.85 for goods sold and delivered to them. That, on said 17th day of August, Lints had on hand and unsold of said goods, purchased of the respondent, which amounted in value, at the selling price to the firm, to the sum of $225.56. Mr. Lints, being unable to pay the debt due the company, proposed to the agent that he would return to the company their goods then on hand in part payment of the debt due the company. This offer was finally agreed to by the agent of the company. The agent then credited the amount on the account against Lints & Atwood of the value of said goods, and immediately informed the company of what he had done, and the company gave Lints & Atwood the same credit on the books of the company, and the agent at the same time delivered the account with the credit given thereon to the said Lints. At the same time Lints gave the company the following receipt for the goods:

“Received of the Norwegian Plow Company, of Dubuque, Iowa, [here follows a particular description of the property;] all having been manufactured by the said Norwegian Plow Company; the aggregate net value of all said property being $202.56. Said property to be held by the said W. A. Lints, free of storage costs, and subject always to the order and complete control of said Norwegian Plow Company.

Dated at Edgerton, Wis., August 17, 1886.

+-----------------------+
                ¦[Signed]¦W. A. LINTS.” ¦
                +-----------------------+
                

The agent of the company explained on the stand, as a witness, that the amount stated in the receipt was by a mistake in adding up the value of the different articles, less by $23 and some cents than the real value, and that he at once corrected the credit to Lints, and informed the company, which also corrected the credit on its books. The sheriff seized the property on the execution against Lints & Atwood, while the same was still in the warehouse of Lints, on the 20th day of August, 1886. There was a claim made on the part of the appellants that this transaction between Lints and the agent of the company was not a bona fide transaction, but was made for the purpose of hindering, delaying, and defrauding the other creditors of said Lints & Atwood. The question of the bona fides of the transaction was submitted to the jury, and found in favor of the plaintiff.

Upon the argument in this court, the learned counsel for the appellant insist that the circuit court should have granted the nonsuit, on their motion, because the evidence of the repurchase of the goods by the company from Lints did not show a valid purchase in the law; that there was no sufficient written memorandum of the sale, and no payment for the goods, or delivery and acceptance of the same, sufficient to make a valid sale under section 2308, Rev. St. It seems to us very clear that there was sufficient evidence in the case to show that these goods were transferred by Lints to the plow company, and accepted by the company, in part payment of its debt against Lints & Atwood. The general agent of the company testified that such was the fact; that he at once gave credit for the value of the goods on their account, and that the company gave credit on its books for the value of the goods on the 19th of August. Giving such credit, if made in good faith, is as much a payment for them as though the money had been paid over for them. Gleason v. Day, 9 Wis. 498;Dow v. Worthen, 37 Vt. 108-113;Walker v. Nussey, 16 Mees. & W. 302; Sharp v. Carroll, 66 Wis. 62-66, 27 N. W. Rep. 832;Matthiessen v. McMahon, 38 N. J. Law, 536; Artcher v. Zeh, 5 Hill, 200;Ely v. Ormsby, 12 Barb. 570;Brabin v. Hyde, 32 N. Y. 519;Teed v. Teed, 44 Barb. 96;Mattice v. Allen, *42 N. Y. 492; Walrath v. Richie, 5 Lans. 362; Benj. Sales, §§ 192, 194. The general agent of the company testified that, at the time of the resale of the property to the company by Lints, he credited the amount upon the account of Lints & Atwood, and delivered to him the account, with the credit in writing thereon. It is true, it is claimed by the defendant that this was not the fact; but that was a question of fact, and not of law. The fact that the company immediately gave credit to Lints & Atwood on its books shows sufficiently that the agent was authorized to give the credit as he testified he had. Under the authority of the cases cited, this credit was a payment of the purchase price within the meaning of the statute. It would seem that the giving of a written receipt for the goods by Lints, acknowledging that he held the goods subject to the order of the company; and the acceptance of such receipt by the company was a sufficient delivery, and acceptance of them by the company, to take the case out of the statute. Benj. Sales, § 182, and cases cited in the notes to said section; Janvrin v. Maxwell, 23 Wis. 51;Smith v. Bouck, 33 Wis. 33;Marvin v. Wallace, 37 Eng. Law & Eq. 6. The motion for a nonsuit was therefore properly denied.

It is alleged as error that the court permitted the agent of the company to testify that the credit for the goods was given on the plaintiff's books on the 19th of August. This evidence that a credit was given by the company on its books was drawn out on a re-examination of the witness, and after he had testified upon the cross-examination by the defendant that he had seen the credit on the plaintiff's books. The witness was asked by the plaintiff what was the date of the credit on said books. In this state of the case it was not error to permit the plaintiff to ask what was the date of the credit. As original evidence for the plaintiff, it was probably inadmissible; but, as a re-examination of the witness as to new matter drawn out on cross-examination, it was not error to admit the answer. The rejection of evidence as to the consideration that Lints paid his partner when he bought him out was clearly proper, as the evidence offered had no tendency to show that the sale to the plaintiff company was fraudulent. There is no evidence that the plaintiff had any connection with that sale, or that it or its agent knew anything about...