Salter v. Smith

• Decision Date: 28 September 1897
• Citation: 97 Wis. 84,72 N.W. 352
• Parties: SALTER ET AL. v. SMITH ET AL. (PIONEER FURNITURE CO., GARNISHEE).
• Court: Wisconsin Supreme Court

97 Wis. 84

72 N.W. 352

SALTER ET AL.

v.SMITH ET AL. (PIONEER FURNITURE CO., GARNISHEE).

Supreme Court of Wisconsin.

Sept. 28, 1897.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by J. W. Salter and others against E. N. Smith, in which there was a judgment for plaintiffs. The Pioneer Furniture Company was garnished in aid of execution, and the Bank of Eau Claire was interpleaded as defendant, claiming the money due from such company for lumber sold and delivered to it by defendant Smith. From a judgment in favor of plaintiffs, the bank appeals. Reversed.

The plaintiffs were judgment creditors of the defendant Smith to an amount exceeding $4,000, and on the 29th day of November, 1895, garnished the Pioneer Furniture Company in aid of execution. The garnishee answered, admitting that it had bought of Smith certain lumber, amounting to $1,663.47, which had all been delivered prior to the garnishment, but which had not been paid for, and that the Bank of Eau Claire claimed the money due for the lumber. The Bank of Eau Claire was thereupon interpleaded as defendant, and answered, claiming to own the money. Issue was joined upon the answers, and the garnishee paid the money into court, and a trial was had by the court, without a jury. The facts were substantially undisputed, and were as follows: On the 10th of September, 1895, the defendant Smith owned several thousand dollars' worth of lumber, piled on the lands of the Chicago, St. Paul, Minneapolis & Omaha Railway Company at Eagle Point, in the county of Chippewa, and owed the Bank of Eau Claire more than $5,000. Upon the day last named, Smith gave to the bank an absolute bill of sale of the lumber, in which bill the consideration was stated to be $2. The bill of sale was intended as security for the debt at the bank, and was filed in the office of the city clerk at Eau Claire, October 8, 1895. Smith remained in control of the lumber after the bill of sale was given, as agent for the bank, and sold the lumber out in parcels, turning over the proceeds to the bank. The last lot of lumber sold was that sold to the Pioneer Furniture Company, amounting to $1,663.47, and it was bought, shipped, and had been received by the furniture company prior to the service of the garnishment summons. Most of the sales made by Smith were made in the name of the bank as owner, but the sale to the furniture company was made in his own name. Notes were to be executed and given to Smith for the purchase price, but they had not been executed at the time of the service of the summons. The furniture company had no notice until after the commencement of this action that the bank made any claim to the lumber. There was no claim made that there was any fraudulent intention in the transaction between the bank and Smith. The court found that the bill of sale was in legal effect a chattel mortgage; that the lumber remained in the possession of Smith until it was sold to the garnishee; and that the bill of sale was not valid against the creditors for more than the consideration therein expressed; and judgment was given awarding to the plaintiff...