Hopkins v. Langton

30 Wis. 379

• Court: Wisconsin Supreme Court
• Decided: June 15, 1872
• Status: Published

Opinions

DixoN, C. J.

The court erred in excluding the depositions of the witnesses Bradford and Erwin, offered by the defendants. In cases of this nature, beside the relation of debtor and creditor, two facts are to be shown in order to establish the defense, first, fraud on the part of the vendor of the property in making the sale, and, second, knowledge of such fraud on the part of the vendee or purchaser at the time of purchasing, or knowledge of such other facts and circumstances by the vendee as ought to have put him upon inquiry and would have led to an ascertainment of the truth, or as will afford reasonable ground for the inference that he purposely or negligently omitted to make those inquiries which an ordinarily cautious and prudent man in the same situation would have made. Knowledge by the vendee of the fraudulent intent, or the existence within his knowledge of other facts and circumstances naturally and justly calculated to awaken suspicion of it in the mind of a man of ordinary care and prudence, thus making it bis duty to pause and inquire, and a wrong on bis part not to do so, before consummating tbe purchase, is essential in order to charge tbe vendee in every such case with a knowledge of facts so calculated to arouse suspicion, that tbe vendee cannot shut bis eyes, but must look about him and inquire. Tbe depositions offered and rejected bad no ten dency to prove tbe guilty knowledge or participation of tbe ven-dees in this case, but they did tend very strongly to prove tbe fraudulent intent of tbe vendors which was tbe first fact to be established by tbe defense. Eor that purpose they are admissible and should have been received, and then, if there was no evidence to connect tbe plaintiffs with such fraudulent intent of their vendors, or to show that they knew or ought to have known it, or to have inquired into it, which was tbe other distinct fact also to be shown by the defense, tbe jury would have so found and returned by their verdict and tbe plaintiffs could not have been prejudiced.

Another error, which in tbe judgment of this court is clear and unquestionable, and which follows from what has already been said, was in the final instruction of the court to the jury, given at the request of the plaintiffs where the judge said : “ I mean you should not charge the plaintiffs with notice of the fraudulent intent of the Red River Company so as to avoid this sale, unless they had "before them at the time these goods were purchased, good and substantial evidence of it, such as sends conviction home to the mind and establishes a well-founded belief — nothing short of this would be sufficient to charge them with Icnowledge, so as to defeat their recovery in this action,” etc. This instruction, or rather small part of one, given after all the others, and at the close of a charge made up almost entirely of the written requests prepared and presented by counsel on both sides, and all of which were given, and which together amounted to over forty folios, must be regarded as a modification of all the others, and was in substance informing the jury that to charge the plaintiffs with notice of the fraudulent intent of their vendors, or to put them upon inquiry which, if omitted, was equivalent to notice, the plaintiffs must Rave Rad at tRe time of tRe pnrcRase actual knowledge of tRe fraudulent intent or sucR evidence of it Refore tRem as would Rave Reen sufficient to estaRlisR tRe fact in a court of justice. A proposition so wide from tRe true rule of law governing in sucR case requires no argument to elucidate its error. TRe court Rad more tkan once in tRe course of tRe ckarge stated tRe correct rule as indicated, Rut as already observed, tRe last instruction must Re regarded as Raving so far qualified it, and substituted anotker and most erroneous one, tkat notking skort of a reversal of tRe judgment and tRe granting of a new trial can Re looked upon as an adequate means of correction.

Sometking ougkt to Re said in tkis opinion in animadversion of tRe practice of counsel wko prepare and present so many and suck voluminous and repetitious requests to ckarge, as was done in this case, wkere tkree or four requests skortly drawn would have covered all the points of law involved and served a far better purpose. With suck a wordy cloud of instructions, as that by which the jury were showered, we might say deluged, in this case, twenty-three long ones from one side and seventeen from the other, the marvel is that the jury should Rave known anything about the law. TRe strong probability is they did not When the learned judges of the circuit courts shall take the responsibility of rejecting instructions thus long drawn out and repeated to the point-of obscurity on account of their length and verbosity and tendency to bewilder the jury, and shall substitute some brief and appropriate instructions of their own, it will be time enough, no doubt, for this court to consider and determine the propriety of such action. We may, however, at this time, with safety predict that any like action on their part which shall, consistently with the ends .of justice, operate to check this evil and repress the spirit of verbosity, which too often prevails in these matters to the detriment of law and justice, will undoubtedly receive tbe favorable consideration of tbis court.

By the Court.— Judgment reversed and a venire de novo awarded.