Angers v. Sabatinelli ( 1944 )

^* Motion for rehearing denied, without costs, on May 15, 1945. Action commenced September 7, 1939, by Charles S. Angers, plaintiff, against Nick Sabatinelli, Cream City Wrecking Company, Northwestern Iron Metal Company, a foreign corporation, Harry Harris, Fisk Building Corporation, Nelli Wrecking Company, a domestic corporation, Gronik, Inc., a corporation, Louis Hirsch, assignee for the benefit of creditors of Cream City Wrecking Company, Morris Stern, Meyer Gronik, United States of America, and all of the creditors of the Cream City Wrecking Company, hereinafter named; Wisconsin Belting Supply Company, Iron Age, A. Trencamp, alias, W.H. Pipkorn, alias, Wright Directory Company, Thomas G. Clark Lumber Company, A. Breslauer, alias, Ray G. Delvin, alias, Industrial Clinic, Hirsh Tool Company, Topp Oil Supply Company, Western Builders Publishing Company, Wisconsin Radiator Body Company, Wisconsin Lumber Works Company, J.M. Segall, doing business as National Lumber Wrecking Company, Dr. Hafke, Dr. Jansen, Stanley Evan, alias, Fritzche Manufacturing Company, American Metal Market Company, Brey Saw Shop., alias, Milwaukee General Construction Company, John Rauschenberger Company, Mullins Body Tank Company, John Zindl, alias, Tinker Motor Company, Milwaukee Jewish Orphan Home, Masonic Trading, Inc., Northwestern Electric Machine Company, Nowini Publishing Company, Ogden Company, Industrial Commission of Wisconsin, H.J. Mortensen, commissioner of insurance in charge of the Builders Mutual Casualty Company, the city of Milwaukee, the city of Cudahy, Employers Mutual Liability Insurance Company, Employers Mutual Indemnity Company, Froedert Grain Malt Company, Rose Achan, alias, Nick Cherubini, alias, Nick Earelli, alias, Sam Curro, alias, Howard Graham, alias, T. Mazza, alias, Joe Monion, alias, Racco Renaldi, alias, Hugo Pezzie, alias, and Tony Zappi, alias, defendants, A.C. Schmidt, receiver of Nelli Wrecking Company, intervening defendant. Plaintiff alleges that on July 19, 1937, he purchased certain land from the Nelli Wrecking Company, and that by reason of fraud in an assignment for the benefit of creditors of Cream City Wrecking Company no title passed to plaintiff's grantor, and now seeks to have a lien established upon the premises in the amount of $4,605 and such further sum as plaintiff has paid for taxes pending the determination of this action in the event the court should find that the assignment for the benefit of creditors was fraudulent and no title passed to this plaintiff. Plaintiff further requests that if plaintiff's title is good, he be authorized to pay into court the sum of $2,986, which is the unpaid balance due on the purchase price of said real estate, to be held in trust for the benefit of creditors of Cream City Wrecking Company, and that a receiver be appointed for Cream City Wrecking Company to receive and distribute these assets in accordance with law.

September 19, 1940, defendant Employers Mutual Liability Insurance Company served an answer to plaintiff's complaint and a cross complaint against Nick Sabatinelli, Northwestern Iron Metal Company, a foreign corporation, Harry Harris, Fisk Building Corporation, Nelli Wrecking Company, a domestic corporation, Gronik, Inc., a corporation, Louis Hirsch, as assignee for the benefit of creditors of Cream City Wrecking Company, Morris Stern, Meyer Gronik, and Cream City Wrecking Company, a Wisconsin corporation, defendants, as a creditor of Cream City Wrecking Company, in its own behalf and in behalf of all other similarly situated creditors of Cream City Wrecking Company, alleging that the defendants entered into a fraudulent conspiracy to deprive the creditors' of Cream City Wrecking Company of the assets and property of such company, intending to hinder and delay creditors, and that a fraudulent conveyance of real estate was made and fraudulent obligations had been incurred, demanding relief against the alleged conspirators. From a judgment entered July 26, 1943, dismissing the complaint and cross complaint, plaintiff and cross complainant appeal.

Plaintiff, Charles S. Angers, and cross complainant, Employers Mutual Liability Insurance Company, rely upon the same facts to establish their respective causes of action.

Defendant Cream City Wrecking Company was incorporated under the laws of Wisconsin on or about March 8, 1926, and was engaged in the building supply and wrecking business at 1228 West Bruce street, Milwaukee, Wisconsin, until August 5, 1936, when an assignment for the benefit of creditors of the Cream City Wrecking Company was executed to the defendant Louis Hirsch. Nick Sabatinelli was president and in charge of operations of this corporation. Cross complainant, Employers Mutual Liability Insurance Company, claims there was due to it from Cream City Wrecking Company on or about April 23, 1935, the sum of $5,951, as premiums earned on policies of workmen's compensation insurance.

Harry Harris, Nick Sabatinelli, and Frank Grossman were the only stockholders of Fisk Building Corporation, a Wisconsin corporation, which was the owner of a certain tract of land and buildings located in the city of Cudahy, Milwaukee county, Wisconsin, together with the personal property contained in said buildings, all of which was formerly part of the Fisk Rubber Company plant. Harry Harris furnished the money, in the sum of $60,000, to purchase this property and was given security on all of the property of the Fisk Building Corporation. August 5, 1935, Fisk Building Corporation, Cream City Wrecking Company, a Wisconsin corporation, Harry Harris, Nick Sabatinelli, and Frank Grossman entered into an agreement whereby Cream City Wrecking Company was to loan to the Fisk Building Corporation all necessary wrecking equipment and tools to be used in the wrecking of a building or buildings on the property in question, for which there was to be no rental charge except its share in the profits made from the operation. Harry Harris, Nick Sabatinelli, and Frank Grossman were to render services without charge, except as they were to share in the profits. It was agreed that after the payment of $60,000 and additional advancements made by Harry Harris for the purpose of carrying on the business of this corporation, all profits realized by the Fisk Building Corporation should be distributed as follows: To Harry Harris, 45 per cent; to Nick Sabatinelli and to his company, Cream City Wrecking Company, 40 per cent; to Frank Grossman, 15 per cent; and the loss, if any, was to be assumed on the same basis. As additional security to Harry Harris against any loss to be assumed by — Nick Sabatinelli and Cream City Wrecking Company, the Cream City Wrecking Company executed and delivered to Harry Harris a note in the sum of $5,000 secured by a chattel mortgage on one Northwestern caterpillar crane and two trucks, and Frank Grossman made, executed, and delivered a promissory note in the sum of $5,000 collateralized with satisfactory collateral to secure payment of any loss for which he may be liable. Pursuant to this agreement Fisk Building Corporation proceeded with the wrecking of the building.

December 2, 1935, Cream City Wrecking Company executed and delivered to the Northwestern Iron Metal Company, an Illinois corporation, a real-estate mortgage in the principal sum of $5,000 on the real estate owned by the mortgagor, for which the sum of $5,000 in cash was paid by the mortgagee. Harry Harris and the members of his immediate family were owners of all of the capital stock of Northwestern Iron Metal Company. At the time of the execution of this mortgage Cream City Wrecking Company gave to Harry Harris a contract for an undivided one-half interest in any amount that the real estate was sold for over $7,500, with an option to Harris to purchase the real estate at any time within three years, which was later extended to ten years.

July 29, 1936, the United States of America filed a lien in the United States district court for the Eastern district of Wisconsin against Cream City Wrecking Company for delinquent income taxes for the year 1933 in the sum of $5,822.37, and on July 30, 1936, filed a duplicate of such lien in the office of the register of deeds of Milwaukee county.

August 5, 1936, a common-law assignment was made by Cream City Wrecking Company to Louis Hirsch for the benefit of its creditors. Louis Hirsch immediately wrote creditors, advising them that Cream City Wrecking Company made an assignment for the benefit of creditors under date of August 5, 1936, and informing them that the assets of Cream City Wrecking Company would be sold at the office of the company, 1228 West Bruce street, on August 24, 1936, at 2 o'clock p.m. He inclosed a form of trust agreement and requested creditors to execute the same, specifying the amount due. Many of the creditors, including cross complainant, Employers Mutual Liability Insurance Company, executed the trust agreement and returned the same to the trustee. The trust agreement became effective August 8, 1936, and on August 10th or 11th Louis Hirsch, trustee, went to the premises of the Cream City Wrecking Company and made an inventory of the assets and had the same appraised by independent appraisers. The books and records of Cream City Wrecking Company were delivered to the office of Morris Stern, an attorney, who prepared the trust agreement and was attorney for the assignee. The sale was advertised in the Milwaukee Journal, a newspaper of large circulation published in the city of Milwaukee, in the issue of August 14, 1936, and notice of sale was mailed to all dealers in the city of Milwaukee engaged in the same business as Cream City Wrecking Company.

August 24, 1936, at the time and place indicated in the notice, Louis Hirsch, as trustee, and A.L. Skolnik, an attorney who offices with Morris Stern, conducted a public sale of the property of Cream City Wrecking Company. A number of persons were present at the sale. The personal property was first offered for sale in seven separate parcels. The number of bidders ranged from one to seven on each parcel. The personal property was then offered in bulk, and after spirited bidding, starting at $800, was sold to Gronik, Inc., for $1,230, which was $450 more than the total of the bids when the items were offered separately. The contingent contract with Fisk Building Corporation and the equity in the real estate of Cream City Wrecking Company were offered together, and sold to Gronik, Inc., for the sum of $75, it being the highest bidder. Gronik, Inc., paid to the trustee the sum of $1,305, the amount bid for the property which it purchased. The accounts receivable were not offered for sale by the trustee, as the same were being collected by him through his attorney. August 28, 1936, Louis Hirsch made a report the sale to creditors, showing the inventory and appraisal of the personal property, giving the names of the appraisers, and the inventory and appraisal of the real estate, giving the names of the appraisers. The appraised value of the personal property was $11,596.17, and of the real estate $18,380. The report shows that the personal property was sold subject to the chattel mortgage of $5,000 and the real estate subject to the real-estate mortgage of $5,000, and subject to unpaid taxes of approximately $800, and also subject to a contract with Harry Harris for an undivided one-half interest over and above the value of $7,500, with an option to Harris to purchase the real estate for a period of ten years. A complete report was made of the sale as held and creditors were advised that the trustee was attempting to collect the accounts receivable, amounting to $2,580.07. A list of preferred claimants and the amounts claimed was also included.

Gronik, Inc., was employed by Nick Sabatinelli to bid for him at the sale. This company was engaged in the business of buying and selling stocks of all kinds, and attended sales of this kind at that time. Gronik, Inc., was paid the sum of $250 for its services at the sale by Nick Sabatinelli. Title to the property purchased at the sale was taken in the name of Gronik, Inc., and shortly thereafter transferred to Nick Sabatinelli. Nick Sabatinelli continued the building-supply business on the premises of the Cream City Wrecking Company after August 5, 1936, under the trade name of "Nelli Wrecking Company." The Nelli Wrecking Company was later incorporated, and title to the property purchased at the Cream City Wrecking Company sale was conveyed to the Nelli Wrecking Company. Nick Sabatinelli was president and active managing officer of this company.

September 9, 1936, Nick Sabatinelli sold the Northwestern caterpillar crane, which was included in the chattel mortgage to Harry Harris, to the Mertes Machinery Company for the sum of $4,700 in cash. The proceeds from the sale of the crane were paid to Nick Sabatinelli and by him indorsed to Morris Stern, who had been employed by Sabatinelli to obtain from Harry Harris a release of the crane from the chattel mortgage. Harris released the crane from the chattel mortgage on condition that Sabatinelli pay to the Northwestern Iron Metal Company a note in the sum of $500, on which he was personally liable, and pay to Fisk Building Corporation the sum of $516.48, proceeds of claims assigned to Cream City Wrecking Company for collection. Morris Stern paid the two items in question, less a credit of $150 allowed by Fisk Building Corporation for lost tools, from the funds of Nick Sabatinelli, and the chattel mortgage was released. The 1935 taxes on the property of Cream City Wrecking Company in the sum of $781.96 were also paid, and the balance, less attorneys fees, was paid to Nick Sabatinelli. Sabatinelli at the same time executed his personal note to Harry Harris to secure any portion of the loss of Fisk Building Corporation for which he might be liable.

January 12, 1938, Morris Stern, as attorney for the Northwestern Iron Metal Company, commenced an action in the circuit court for Milwaukee county, Wisconsin, to foreclose the real-estate mortgage given by the Cream City Wrecking Company to Northwestern Iron Metal Company under date of December 2, 1935, in the sum of $5,000, and a sale of the real estate described in the mortgage was made to the defendant Harry Harris, pursuant to such foreclosure judgment, on November 27, 1939. Morris Stern was also the attorney who prepared the agreement between Fisk Building Corporation, Cream City Wrecking Company, Harry Harris, Nick Sabatinelli, and Frank Grossman, dated August 5, 1935; he also prepared the mortgage papers as attorney for the Northwestern Iron Metal Company to secure a loan of $5,000 under date of December 2, 1935; later he prepared the voluntary assignment by Cream City Wrecking Company to Louis Hirsch for the benefit of creditors at the request of Cream City Wrecking Company, dated August 5, 1936, and was attorney for Louis Hirsch as trustee; he was attorney for Nick Sabatinelli in obtaining the release of the Northwestern caterpillar crane from the chattel mortgage to Harris on September 9, 1936, for which services he was paid by Sabatinelli. Morris Stern also prepared the articles of incorporation of Nelli Wrecking Company in January, 1937, and completed its incorporation. Further facts will be stated in the opinion. This action was before this court on two former appeals, and was reported in 235 Wis. 422,293 N.W. 173, and 239 Wis. 364, 1 N.W.2d 765. The rights of the plaintiff are determined by the result of appellant cross complainant's claim, and we will therefore give first consideration to that matter.

There is considerable controversy between the parties as to the nature of this action, respondents contending that appellant cross complainant, Employers Mutual Liability Insurance Company, seeks to recover damages by reason of conspiracy on the part of respondents, which it has no right to maintain. An examination of appellant cross complainant's necessarily long cross complaint gives some reason for respondents taking this position, where in item 16 of its prayer for relief appellant cross complainant asks that the amount of damages sustained by it and other creditors of Cream City Wrecking Company be determined, and for judgment against the respondents jointly and severally for the damages so found. However, giving consideration to other portions of the cross complaint and prayer for relief, we find that it asks that the chattel mortgage bearing date August 5, 1935, and the obligation purporting to be secured thereby, be determined to be void and unenforceable, and that the real-estate mortgage bearing date December 2, 1935, and the obligation thereby secured, be determined to be void and unenforceable; and other items of relief asked are consistent with an action to set aside an alleged fraudulent conveyance of the real estate and to annul alleged fraudulent obligations in favor of respondents. It is considered that the trial court properly proceeded with the trial on the theory that this was an action under the Uniform Fraudulent Conveyance Act, authorized by sec. 242.10, Stats., which provides:

"Where a conveyance made or obligation incurred is fraudulent as to a creditor whose claim has not matured he may proceed in a court of competent jurisdiction against any person against whom he could have proceeded had his claim matured, and the court may (a) restrain the defendant from disposing of his property, (b) appoint a receiver to take charge of the property, (c) set aside the conveyance or annul the obligation, or (d) make any order which the circumstances of the case may require."

The questions to be determined on this appeal are whether there was a fraudulent conveyance of real estate and personal property by the Cream City Wrecking Company or Louis Hirsch, as assignee for the benefit of creditors of Cream City Wrecking Company, which should be set aside, and whether there are any fraudulent obligations outstanding against Cream City Wrecking Company which should be annulled, which were intended to hinder, delay, and defraud creditors of Cream City Wrecking Company from realizing on their claims.

From an examination of the record it is evident that the trial court properly stated in his opinion:

"Upon the trial the court permitted the widest latitude in the introduction of proof of circumstances surrounding the above-named transactions which might throw light upon the issue of fraud and conspiracy to defraud the' creditors of the Cream City Wrecking Company on the part of the defendants named.

"Defendant and cross complainant, Employers' Mutual Liability Insurance Company, probed most searchingly into every phase and aspect of all circumstances bearing upon the question of the existence of a scheme to defeat the rights of the creditors of the Cream City Wrecking Company."

Appellant and cross complainant, Employers Mutual Liability Insurance Company, contends, (1) that the findings of fact are not conclusive because they omit material and issuable facts presented by the pleadings and evidence, and (2) that the trial court's findings of fact are against the clear preponderance of the evidence. It may be well to state the rules of law to be applied to the evidence in examining these contentions. In an action to vacate a conveyance for fraud or to annul a fraudulent obligation, the burden rests upon the party attacking it to establish fraud by clear, satisfactory, and convincing evidence. Massey v. Richmond (1932), 208 Wis. 239,242 N.W. 507; Miller v. Lange (1940), 234 Wis. 460,290 N.W. 618. In Massey v. Richmond, supra, the court said (p. 249):

"Transactions made in the ordinary course of business upon which no evidence of fraud, overreaching, or wrongdoing is stamped, are not to be lightly set aside. The burden of proof is upon the parties attacking the conveyance to show by clear and satisfactory evidence that the conveyance was fraudulent and intended to hinder, delay, and defraud creditors."

It is unnecessary to cite authorities to the elementary proposition that findings of a trial court upon appeal will not be disturbed unless against the great weight and clear preponderance of the evidence.

As to appellant's first contention, that the findings of fact are not conclusive because they omit material and issuable facts presented by the pleadings and the evidence, only the ultimate facts in issue need be found. Schmoldt v. Loper (1921), 174 Wis. 152, 182 N.W. 728. From a careful examination of the questions on which it is claimed no findings of fact were made it is considered that most of the evidentiary facts, if not all of them, are covered in some manner in the findings, and the ultimate finding that there was no fraud on the part of any of the defendants is sufficient to make it unnecessary for the court to have made findings on the questions complained of by this appellant.

Appellant's contentions that certain of the trial court's findings of fact are against the clear preponderance of the evidence are numerous, and we do not propose to consider each one separately. This appellant draws inferences from a number of normal business transactions made in the ordinary course of business between Cream City Wrecking Company, of which Sabatinelli was president and managing officer, and Northwestern Iron Metal Company, of which Harry Harris and his family were sole stockholders, and Harry Harris personally. The evidence shows that Harris was engaged in the business of loaning money and financing business ventures, and Cream City Wrecking Company was engaged in wrecking buildings and selling building supplies. At the time of the transactions in question Harris had his business office in Chicago, Illinois, and Cream City Wrecking Company was engaged in business in Milwaukee, Wisconsin. Each transaction was separate and independent. All of them were consistent with the particular business in which they were engaged. When Sabatinelli, on behalf of Cream City Wrecking Company, desired to obtain the Fisk Rubber Company property and wreck the building and sell the material, he was without funds with which to finance it. Appellant would draw the inference that by reason of Harris requiring additional security from Sabatinelli and Cream City Wrecking Company for the repayment of the money advanced to purchase the property, that this was the beginning of a fraudulent conspiracy to defeat creditors. This does not follow, as it was only good business on the part of Harris to demand as additional security a chattel mortgage on the Northwestern caterpillar crane and two trucks. A mortgage may be given for the purpose of indemnifying another against a future and contingent loss or liability. 14 C.J.S., Chattel Mortgages, p. 646, sec. 40. The court found, upon ample evidence, that there would be a loss in the business venture. The fact that Harris saw fit at a later date to release the crane upon conditions prescribed by him is no proof of fraud.

The loan of $5,000 in cash to Cream City Wrecking Company was a separate transaction, and there is no evidence that Harris had any knowledge of what the mortgagor intended to do with the money. A demand by Harris of an agreement that he receive one half of the proceeds of a sale of the property in excess of $7,500 in addition to the mortgage, together with an option to purchase the property at any time during ten years, and there being no evidence that Cream City Wrecking Company was insolvent, or caused to be insolvent by making this loan, is sufficient to sustain a finding that there was no fraud in this transaction. Some question is raised as to the authority of Northwestern Iron Metal Company to do business in Wisconsin at the time this loan was made, which we consider has no merit.

Appellant argues that the defendant Stern was attorney for Harris, Northwestern Iron Metal Company, Sabatinelli, and Cream City Wrecking Company at different times and in separate transactions, and was attorney for Hirsch, assignee for the benefit of creditors of Cream City Wrecking Company, which furnished him with knowledge whereby he could and did assist these defendants in committing a fraud upon the creditors of Cream City Wrecking Company. We have examined the evidence very carefully, and consider that Stern at no time represented inconsistent interests or did anything unprofessional or inconsistent with his duties as a lawyer. There was never any question as to the client he represented in any transaction. The services which he rendered were well and competently performed. Any inference of fraud on his part is not sustained by the evidence.

There is no evidence on which it can be found that Hirsch, as assignee for the benefit of creditors of Cream City Wrecking Company, did not act in good faith, or that he conspired with any person or persons for the purpose of hindering, delaying, or defrauding creditors. Without attempting to restate all of the facts, it appears that at the time he was appointed assignee of Cream City Wrecking Company, Hirsch did not know Sabatinelli or Gronik, who purchased the assets for him; that he appointed appraisers of the assets, whose ability and integrity are not questioned; that he gave proper and ample notice of the sale of the assets, and conducted a public sale where there were numerous bidders, and the sale was fairly and honestly conducted. This appellant infers that there was fraud because the assets were purchased by Sabatinelli for much less than the appraised value. Sabatinelli had a right to purchase the assets, and in his testimony explains how he obtained the funds, which the court was warranted in believing. The fact that the real estate was sold for much less than its appraised value is not unusual in a forced sale of this kind. It was a special type of property and had conditions attached to the title which did not make it a highly desirable purchase.

There is no direct testimony or evidence establishing an agreement between the alleged conspirators, and there is no writing or correspondence between them which would indicate a purpose to defraud the creditors. The assessment by the collector of internal revenue of an additional income tax for 1933 in the sum of $5,822.37, together with the loss sustained in the Fisk project, appears to be the occasion of Cream City Wrecking Company making an assignment for the benefit of creditors.

Additional contentions of this appellant have been fully, considered, but no useful purpose will be served in further discussing them, as they do not change the conclusion reached. A careful examination has been made of all the evidence, and it is considered that there is ample evidence to sustain the findings of fact and conclusions of law of the trial court.

The trial court taxed costs in favor of each of the defendants under sec. 271.02(2), Stats., which provides:

"In equitable actions and special proceedings costs may be allowed or not to any party, in whole or in part, in the discretion of the court, and in any such case the court may award to the successful party such costs (exclusive of disbursements) not exceeding $100 as the court deems reasonable and just, in view of the nature of the case and the work involved. . . ."

It is claimed that this is one action, and the total costs that can be allowed to defendants is therefore limited to $100. While it is' alleged in the cross complaint that all of the defendants entered into a conspiracy with the fraudulent purpose of hindering, delaying, or defrauding creditors in the collection of their claims, the purpose of the action against the several defendants was to set aside an alleged fraudulent conveyance and to annul alleged fraudulent obligations, and applied to each defendant only so far as their interests appear. It is in fact a joinder of several causes of action to avoid multiplicity of suits. There were separate issues to be tried as to each defendant, which distinguishes this case from the usual case where all of the defendants have a like interest in the issues involved. This was a long and involved trial, the record consisting of 1,586 pages and 238 exhibits. The trial court was in a position to determine the amount of work necessary to be done on behalf of the separate interests of each defendant. It is considered that the trial court had authority in his discretion to tax costs in favor of each defendant. The judgment as to this appellant must be affirmed.

It follows that the plaintiff is not entitled to a lien for down payment, maintenance, and taxes paid. Plaintiff claims he should be entitled to redeem from the mortgage if fraud is not established. The foreclosure action entitled "Northwestern Iron Metal Company, plaintiff, v. Cream City Wrecking Company et al., defendants," affecting this property was commenced more than a year after the assignment for the benefit of creditors of Cream City Wrecking Company. Plaintiff did not oppose this action nor did he deposit the balance of the purchase price in court and seek to have the court determine who was entitled to the money. It is considered that the foreclosure action is res judicata as to the plaintiff.

By the Court. — Judgment affirmed.

The following opinion was filed May 15, 1945: