Rindskopf v. Myers

• Decision Date: 30 January 1894
• Citation: 87 Wis. 80,57 N.W. 967
• Parties: RINDSKOPF v. MYERS.
• Court: Wisconsin Supreme Court

87 Wis. 80

57 N.W. 967

RINDSKOPF

v.MYERS.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Appeal from circuit court, Wood county; Charles V. Bardeen, Judge.

Action by Elias Rindskopf against Henry Myers. There was judgment for defendant, and plaintiff appeals. Affirmed.

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

This action was brought by the plaintiff to recover the value of the greater portion of a stock of goods sold and delivered by Hyman Nathan to the plaintiff, and seized a few days thereafter under writs of attachment in the hands of the defendant, as sheriff of Clark county, in favor of Henry Benedict, a creditor of Hyman Nathan, on the ground that the sale to the plaintiff by Hyman Nathan was fraudulent and void as against his creditors. The record presents only certain alleged errors in the instructions of the court to the jury, and its refusal to give certain others, it being conceded that the evidence in the case to support a verdict for the defendant is sufficient. Facts and circumstances were given in evidence, some of which amounted to badges or indicia of fraud, properly calling for instructions on all the points hereinafter stated. The court instructed the jury, among other things, that “(1) a sale or assignment of all a man's property, when he is largely in debt, naturally excites suspicion of fraud, and is therefore evidence of fraud,” and in this immediate connection added: “Or if made in unusual haste, and not in the manner in which men of ordinary care and prudence usually transact their business, or if made at greatly inadequate price, these and similar acts are badges of fraud. They are not fraud, but may be considered, when they are proven to exist, by the jury, as facts and circumstances tending to show fraud. (2) When a sale is made with intent to hinder, delay, or defraud creditors, it is void, if the party receiving or purchasing the property so sold had knowledge of such intent; but this knowledge need not be actual, positive information or notice, but may be inferred from the knowledge by the purchaser of facts and circumstances sufficient to raise such suspicions as should put him upon inquiry as to the real situation, and which, if pursued, would lead him to the truth.” That, if the sale was with fraudulent intent on the part of Nathan, the jury should inquire if the plaintiff knew of such intent, “or had knowledge or notice of such facts and circumstances as to put him, as a reasonably prudent man, upon inquiry in relation thereto, and would have led to his ascertaining the truth.” That if Nathan intended to defraud his creditors, and if “the circumstances, situation, and surroundings were such as to put an ordinarily prudent man on his guard, and the plaintiff had knowledge thereof, and purposely or negligently omitted to make such inquiries as an ordinarily prudent and cautious man would have made in his situation, which inquiries, if pursued, would have led to his ascertaining the truth as to Nathan's intent, then the plaintiff cannot recover.” The court refused to instruct the jury, at plaintiff's request, (1) that if the plaintiff “had no knowledge of the intent on Nathan's part, and did not participate with him in such intent, then the jury should find for the plaintiff; (2) to avoid the sale the fraudulent intent must be known to, and entertained by, both buyer and seller, and both must be connected with the fraudulent design; (3) the payment by a purchaser of a fair consideration upon a sale of property, although not conclusive, is strong evidence of the good faith of the transaction, and requires clear evidence of fraudulent intent to overcome it.” On the cross-examination of Louis Rindskopf, a witness for the plaintiff, his brother, the court allowed defendant's counsel, against plaintiff's objections, to show that he (Louis) did not ask Nathan any questions as to whether he owed for his stock of goods, or was pressed by creditors; that he asked him no questions at all,--made no inquiries as to his financial condition. On the cross-examination of the plaintiff, it appeared that he had a bank book, and that it was in Milwaukee. On re-examination his counsel asked him to state the reason he had, if any, for not bringing the book. The court ruled that the reason why he did not bring it was immaterial, unless requested to bring it, and even then it might be immaterial. It appeared that no such request was made, and the court excluded the inquiry. The jury found for the defendant, and the defendant had judgment, from which the plaintiff appealed.

R. J. MacBride, for appellant.

James O'Neill, for respondent.

PINNEY, J., (after stating the facts).

1. The instruction, in substance, that the sale or assignment of all a man's property, when he is largely in debt, naturally excites suspicion of fraud, and is therefore evidence of fraud, must be considered with the context. The court had instanced this with some other like facts, saying: “This and similar acts are badges of fraud. They are not fraud, but may be considered, when they are proven to exist, by the jury, as facts and circumstances tending to show fraud.” The jury were told that in this sense the particular fact or badge of fraud referred to was evidence to show fraud, but not that it was sufficient to prove it. We think the jury could not have misunderstood the purport and...