Stirling v. Wagner

• Citation: 31 P. 1032,4 Wyo. 5
• Parties: STIRLING v. WAGNER
• Decision Date: 13 May 1893
• Court: Wyoming Supreme Court

31 P. 1032

4 Wyo. 5

STIRLING v. WAGNER

Supreme Court of Wyoming

May 13, 1893

4 Wyo 5 at 46.

Original Opinion of December 15, 1892, Reported at: 4 Wyo. 5.

Rehearing denied.

CONAWAY JUSTICE. GROESBECK, C. J., and CLARK, J., concur.

OPINION

ON APPLICATION FOR A REHEARING.

CONAWAY JUSTICE.

Defendant in error asks for a rehearing on the ground that the court erred in its conclusion that the consideration of the $ 19,000.00 note in question in the cause could be no more than the Laramie store. The testimony of defendant in error himself is explicitly and positively to this effect. In answer to the question, "You may state for what the note was given?" he says: "It was given for a stock of merchandise that I owned in the city of Laramie." And again, speaking of the sale of this store to E. J. Wagner on February 1st, 1888, he says: "I said to him I will sell this stock of goods for $ 19,000.00, and I sold it to him." This is from the record. In attempting to subvert this positive testimony of defendant in error by their construction of other portions of his testimony his counsel have undertaken a task too great for human ingenuity to accomplish.

In accepting this uncontradicted testimony of defendant in error as true, his counsel urge that the court erred, and acted upon "theories of construction peculiar to itself," and "reached its conclusion upon considerations dehors the record." Also that this action of the court was a surprise to them. It is very frank in counsel to admit their surprise that the testimony of their client should be accepted as absolutely true. But when on behalf of the same client they urge that this is error, the surprise of counsel and court becomes mutual. If the testimony of the client is untrue, there are some ugly doctrines of estoppel standing in his way when he seeks to allege his own untruthfulness. It is not necessary to go outside of the record to find uncontradicted and satisfactory evidence that the consideration of the $ 19,000.00 note and of the re-purchase by defendant in error in September, 1888, of the stock of goods, with its large additions of new and valuable goods, was grossly inadequate or entirely wanting. Indeed it is quite apparent that the untruthfulness of defendant in error consisted not in stating the consideration less than it actually was, but in stating that there was any consideration whatever.

Neither is it necessary to go outside of the record to find evidence forcing the fair and disinterested mind to the conclusion that defendant in error was a party to numerous frauds perpetrated by E. J. Wagner as the active agent. During the summer of 1888, E. J. Wagner bought large bills of goods upon false and fraudulent representations of his solvency. Defendant in error himself testifies that E. J. Wagner told him at that time that he had established a good credit and was buying goods upon credit. Defendant in error does not state whether or not E. J. told him that he represented himself as solvent in order to obtain credit. As a business man he would know that without telling. At the same time he was holding E. J.'s notes for $ 41,500.00, $ 34,000.00 of which was payable on demand, with which to gobble up whatever goods E. J. could get by the use of his credit, in advance of the claims of those who furnished the goods. The litigation in this cause arises from his attempt to use this fraudulent $ 19,000.00 note for such purpose. The principal element in the frauds of E....