Tharalson v. Wyman

Mitchell, J. This was an action by an assignee in insolvency to recover certain securities which it is alleged that the insolvent, Nordstrom, assigned to defendants with a view of giving them a preference over other creditors, the defendants having at the time reasonable cause to believe that Nordstrom was insolvent. Upon the trial the plaintiff introduced evidence tending to prove that Nordstrom was a retail country merchant, and for over two: years had been a customer of the defendants, who are wholesale merchants in Minneapolis; that the last bill of goods sold by defendants to him was in June or July, 1892; that in August, 1892, his account was closed by defendants taking from him two notes, one payable in September and the other in October of the same year; that the notes were not paid at maturity; that defendants wrote repeatedly to him, informing him that they had to be paid; that their agent frequently called on him, — almost every month, — and requested payment, but that he was unable to pay anything except á partial payment in December; that the agent finally called on him January 11,1893, and asked him for money, and pressed him for payment of the notes; that he informed the agent that he had no money, but suggested that he had some notes, and took out of his safe a number of small notes against customers, aggregating an amount equal to or more than the amount due from him to defendants, and turned them out as collateral security for his own notes held by defendants. At this time Nordstrom was hopelessly insolvent, his debts amounting to over $7,500, while his assets, consisting of merchandise and book accounts, nominally amounted to about $4,900, but were of the actual value of only about $1,200. It does not appear that defendants’ agent made any inquiry as to Nordstrom’s financial condition. When the plaintiff rested, the court, on defendants’ motion, dismissed the action on the ground that the plaintiff had failed to es [235] tablish his cause of action. This was error. There was evidence that would have justified findings- — -First, that Nordstrom assigned these securities in contemplation of insolvency with a view of giving the defendants a preference over other creditors; and, second, that defendants had at the time reasonable cause to believe that he was insolvent. Counsel for plaintiff contends that the evidence was so strong as to require such findings. But it is not necessary to go that far. A trial court has no right to dismiss an action on the ground stated, except when the evidence adduced for the plaintiff would not have justified a verdict or findings in his favor. The rule in this regard is the same whether the case is tried with a jury or by the court. If the evidence is such that it would justify findings in the plaintiff’s favor, it is the duty of the court, under the statute, to give its decision in writing, stating the facts found and the conclusions of law separately. It is no answer to this to say that, if the court thought there was no evidence at all to justify a recovery by plaintiff, if it had made findings they would necessarily have been against the plaintiff, and therefore there would be no prejudicial error except when the evidence was so conclusive as to require findings in his favor. In the case of the mere dismissal of an action the record discloses neither the conclusions of the court upon any particular fact nor its conclusions upon any particular question of law except the bare fact that in his opinion the evidence failed to establish a cause of action. For example, in this case, aside from a memorandum, which is no part of the record, it cannot be determined whether the court concluded that there was no evidence that Nordstrom intended to give a preference, or that there was no evidence that defendants had any ground for believing that he was insolvent. In short, the record furnishes no basis for review on appeal of the decision of the trial judge upon either the facts or the law, except as to whether there was any evidence tending to establish a cause of action. Order reversed. Buck, 3absent, sick, took no part. (Opinion published 59 N. W. 1009.)