Michelstetter v. Weiner

Winslow, J. The appellants strenuously contend that the transactions between Henry Michelstetter and the chattel mortgagees constitute an assignment for the benefit of a part of his creditors, and that they must be held void, within the rule laid down in Winner v. Hoyt, 66 Wis. 227. This contention must fail, because the evidence nowhere shows that any trust was created or trustee appointed either in writing or by parol. This court has held that in order to stamp a transaction of this nature with the character of a voluntary assignment there must be a trust created and a trustee appointed. Ingram v. Osborn, 70 Wis. 184; Cribb v. Hibbard, S., B. & Co. 77 Wis. 199. Certainly no trust was created by the execution and delivery of the mortgages themselves. It is claimed, however, that a trust was in effect created by virtue of some transactions just after Buchanan took formal possession under the mortgages. The exact nature of these transactions is left in some uncertainty. The attorney who was acting for all of the mortgagees says in his evidence that Michelstetter turned over the goods to him at that time in satisfaction of the mortgages; the stock was turned out in payment of these three notes. But in another part of his testimony he says that it was understood that the goods were to be turned out to Morris Michelstetter in payment of his claim, and that Morris Michelstetter, in order to protect his mortgage on these goods, would ham to pay the prior mortgages. Henry Michelstetter testified that he thinks when the goods were turned over the agreement was that his father should pay Cunningham’s claim. Whichever version of the transaction [302] be accepted as correct, it is manifest that no trust was created or trustee appointed. It was simply a transfer of property made absolutely by way of full payment and satisfaction of a debt or debts, and was in the nature of an ordinary conveyance. Ingram v. Osborn, 70 Wis. 184; Greene & R. Co. v. Remington, 72 Wis. 648. It is next contended by the appellants that the evidence is so clear that the transfers in question were fraudulent as to creditors that the court should have taken the case from the jury and directed a verdict for the defendant. We shall not undertake to review the evidence in this opinion. It is sufficient to say that in our judgment the question as to whether or not the transfers were fraudulent was properly one for the jury under proper instructions. The objection that the alleged sale of the goods was void under sec. 2308, R. S., because no note or memorandum thereof was made and no part of the goods delivered, cannot prevail, because there was sufficient delivery of the goods to satisfy the terms of this section. Janvrin v. Maxwell, 23 Wis. 51. It is said (as the fact is) that there was no delivery and actual change of possession sufficient to satisfy the terms of sec. 2310, R. S., and that there is no evidence sufficient to overcome tho presumption of fraud raised by that sec-tioñ. A jury would certainly have been entirely justified under the evidence in finding the transaction fraudulent, but there was evidence tending to show good faith, and the court was undoubtedly right in submitting the question to the jury. Finally, it is claimed by appellants that the special verdict does not cover all the issues in the case. Taken in connection with the charge of the court, which was very full and was not excepted to by appellants, we think the special verdict fairly covers all the controverted questions in the case. By the Court. — Judgment affirmed.