Wing v. Miller

• Decision Date: 05 January 1889
• Citation: 20 P. 119,40 Kan. 511
• Parties: HENRY O. WING v. J. J. MILLER
• Court: Kansas Supreme Court

20 P. 119

40 Kan. 511

HENRY O. WING v. J. J. MILLER

Supreme Court of Kansas

January 5, 1889

Error from Dickinson District Court.

THIS was an action of replevin, brought in the district court of Dickinson county by Henry O. Wing against J. J. Miller, to recover certain goods, wares and merchandise which had previously been seized as the property of the Wall Brothers by Miller as sheriff of Dickinson county, under various orders of attachment issued in suits brought by various creditors of the Wall Brothers. It is admitted that the goods were at one time the property of the Wall Brothers, but the plaintiff claims that prior to the levy of the orders of attachment upon them, he honestly and in good faith purchased the same from the Wall Brothers; while the defendant claims that the plaintiff made the purchase with the intention of assisting the Wall Brothers in hindering, delaying and defrauding their creditors. At the February term, 1886, the case was tried before the court and a jury, and the jury made the following special findings of fact, and rendered the following verdict, to wit:

"SPECIAL FINDINGS OF FACT.

"Ques. 1. Did the sale of the stock of goods in controversy in this case made by Wall Brothers to the plaintiff Wing, at the time and under the circumstances, necessarily have the effect to hinder or delay, or defraud the creditors of Wall Brothers? Ans.: Yes.

"Q 2. Did the sale of the stock of goods in controversy in this case made by Wall Brothers to the plaintiff, Wing, at the trial and under the circumstances necessarily have the effect to hinder or delay the creditors of Wall Brothers in the collection of their claims? A. Yes.

"Q 3. What if any inquiry did the plaintiff, Wing, make at or before the transfer of the stock of goods in controversy in this suit to him by Wall Brothers, to ascertain what if any amount Wall Brothers were owing? A. None.

"Q 4. What if any amount did Wall Brothers owe on account of the purchase of goods at the time of the transfer of the stock of goods in controversy in this suit to the plaintiff, Wing? A. Between seven and nine thousand dollars.

"Q. 5. Was the transfer of the goods from Wall Brothers to Wing made in undue haste? A. Yes.

"Q. 6. Did the plaintiff, Wing, inquire of Wall Brothers or either of them, or of any other person whether Wall Brothers were financially embarrassed or largely indebted to their creditors before he bought the stock of goods? A. No."

"VERDICT.

"We, the jury, duly impaneled and sworn in the above cause of action, do upon our oaths find for the defendant that at the commencement of this suit the defendant was entitled to the possession of the property in controversy, and that the value of said goods was $ 5,735."

The court below rendered judgment in favor of the defendant and against the plaintiff for the recovery of the goods and for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review.

Judgment affirmed.

J. G. Mohler, Burton & Moore, and Rossington, Smith & Dallas, for plaintiff in error.

John H. Mahan, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

It is a settled fact in this case that the Wall Brothers sold the goods in controversy to the plaintiff Wing for the purpose of hindering, delaying, and defrauding their creditors, and the only question now presented of any importance is, whether Wing had notice of such intention when he purchased the goods; or to state the question more accurately as it is presented to this court, it is whether the evidence introduced on the trial in the court below is sufficient to uphold the verdict of the jury, which in effect established the fact that Wing had notice of such intention, or at least that he had knowledge of such facts as would put him on inquiry. It appears from the evidence that Wing resided at Delphos, in Ottawa county, and that the Wall Brothers, (Philip M. Wall, James Wall, and Michael Wall,) resided and did business at Solomon City, in Dickinson county. Nathaniel Wall, the father of the Wall Brothers, and Thomas Donigan, a brother-in-law of the Wall Brothers resided at Delphos, and were near neighbors of Wing. Wing had no property, except, as he states, $ 7,000 in currency, which he kept, as he states, at his house and not in any bank; indeed, he states that he never had any money in a bank. He also owed a number of debts. He says he brought this money from Colorado about four months before, but how he got the same is not satisfactorily explained. He had no business except that he was the agent of his wife in operating a livery stable at Delphos, which belonged to his wife and Mrs. Alice McDonough, the wife of Joseph McDonough. He never had been a merchant, and had no knowledge of merchandise. He was also illiterate, and could not read or write. The Wall Brothers were hopelessly insolvent, and intended to dispose of their stock of goods in a manner to hinder, delay, and defraud their creditors. On Thursday, January 8, 1885, Michael Wall, a member of the firm of Wall Brothers, proposed to Wing at Delphos to sell to Wing the stock of goods, and this for the reason, as Wing states, that Michael Wall said that he and his brothers did not get along well together. On that same evening, Wing and Michael Wall started to Solomon City for the purpose of accomplishing the intended transfer of the goods. J. J. Murphy, a clerk in the store at Delphos of Thomas Donigan, a brother-in-law of the Wall Brothers, went with Wing as Wing's agent, and for the purpose of representing Wing. It does not appear that Wing and Murphy had ever before had any particular or intimate acquaintance. It was at first considered that Wing should purchase the stock of goods in the lump, but afterward, it was...