Momsen v. Plankinton

Newman, 'J. The only question presented by this appeal is whether the findings of the trial court are sufficiently supported by the evidence. If they are so supported, they cannot be overthrown here. The burden was on the petitioner to satisfy the trial court, by evidence, of the truth of his contention. He failed to so satisfy the court. The findings of the trial court cannot be disturbed here unless it is made to appear to this court that the evidence produced in the trial court was so strong and cogent as that the trial court ought, reasonably, to have been convinced by it. For it is well established by a long and uniform line of decisions that this court will not reverse the findings of the trial court, or of a referee, unless they are clearly against the preponderance of the evidence. This rule applies to all trials by the court or a referee, in equitable as well as in legal actions. Ely v. Daily, 40 Wis. 52; Norris v. Persons, 49 Wis. 101; Stanley v. Risse, 49 Wis. 219; Gœtz v. Salomon, 55 Wis. 310; Althouse v. Baldwin, 56 Wis. 398; Anderson v. Wehe, 62 Wis, 401; Bruce v. Miller, 72 Wis. 404; Zimmerman v. Chambers, 79 Wis. 20; Hosmer v. McDonald, 80 Wis. 54; La Coursier v. Russell, 82 Wis. 265. The rule applies as well where the testimony, as in this case, is taken by a referee and reported to the court. Ely v. Daily, supra; Hosmer v. McDonald, supra. If the force of this rule were better realized by the profession, it would prevent many fruitless appeals. There is indeed very little, if any, evidence to show that, [169] at the time when he made the transfers, Day was contemplating the making of an assignment for the benefit of his creditors, or that he believed that he was in an insolvent or failing condition. There is much -which tends to show the contrary. He believed that he was a man of wealth and ample means. He expected to continue his business, and believed that he had ample property to pay all his debts and leave a handsome surplus. But the failure of the bank precipitated his affairs. The advance of panic, with the shrinkage of all values, brought all his chateaux en Espagne in sudden destruction about his unfortunate head. It can hardly be believed that Day really contemplated a financial cataclysm, or discerned the impending necessity which so soon compelled his assignment. It seems to be always possible, after the event, to discover plausible reasons why it should have been foreseen ;• but it should be remembered that the retrospect has this advantage, at least, that it is illuminated by facts which gave but little, or uncertain, light to the prospect. Such facts should be viewed only in reference to the light which they actually shed upon the prospect. ' Had the bank reasonable cause to believe that Day was insolvent? The bank, of course, knew of Day’s large indebtedness to it. But it did not know of any considerable indebtedness which he owed elsewhere, or that he was incurring indebtedness elsewhere. It knew that he was a man of large property and was doing a large business. It knew that he owned a large amount of lands in the states of Minnesota and the Dakotas, which were estimated to be of large value. And while it knew that he did not meet promptly his obligations to it, and that he was probably unable to do so in the usual course of his business, it was yet willing to take his securities. For it no doubt believed that the value of his property exceeded the amount of his debts by a wide margin, and would be sufficient, with proper management, to pay all his debts, without insolvency. Day himself estimated the excess of his property above his debts at above [170] a half million dollars. The bank could not, with more certainty than Day himself, forebode the widespread financial ruin which was impending, nor that the value would so suddenly disappear from all properties, and especially from Day’s property, leaving all in a state of collapse. While the evidence was perhaps sufficient to justify, it was not sufficient to compel, a finding that Day contemplated the’execution of an assignment or anticipated insolvency at the time when he executed the transfers to the bank, nor that the bank either knew, or had reasonable cause to believe, that he was insolvent at that time. The finding is not clearly against the preponderance of the evidence.. By the Cowrt.— The order of the circuit court is affirmed.