Stein v. Hermann

23 Wis. 132

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

Paine, J.

The argument of the appellants’ counsel to the effect that the chattel mortgage involved in this case should be held void as to • creditors for the reason that it did not state truly the amount and character of the indebtedness secured by it, was very forcible, and was supported by several high authorities. But, without determining that question, the judgment must be reversed for error in giving the fifth instruction asked by the defendant; which was as follows: “ That if the defendant indorsed the note of Wiener, he thereby incuned a liability which was a sufficient consideration for the mortgage, and it is incumbent on the plaintiff to show .that that liability was discharged at the time defendant took possession of the goods under the mortgage, or the jury must find for the defendant.” This instruction ignores all question as to whether the mortgage was given for a larger amount than the defendant’s indorsements, and this for the express purpose of covering up the property from Wiener’s creditors, and directs the jury to find absolutely for the defendant in case he had indorsed the notes of Wiener and they were not discharged. It is very obvious that, although both those facts were true, the mortgage might still have been given for the very purpose of bindering and delaying Wiener’s creditors, as there was much evidence tending to show it was given. And if this was so, it would be void as to the creditors.

If the only idea intended to be conveyed by that instruction was, as counsel suggested, that the indorsement of Wiener’s notes wa,s a sufficient consideration to uphold the mortgage, it was unfortunately drawn, for it clearly covers much broader ground.

By the Court. — The judgment is reversed, with costs, and a venire de novo awarded.