Hartwell v. Page , 14 Wis. 49 ( 1861 )

By the Court,

Paine, J.

We think the rulings of the court below in respect to the possession of the plaintiff, whether right or wrong, may, upon these pleadings, be regarded as immaterial. The answer specifically admits that the goods in question had been sold by King to the plaintiff, and seeks to avoid the sale by alleging that it was fraudulent It is true it first contains a general denial of the allegations in the complaint. But we have several times decided that although under the Code a defendant may set up as many different defenses as he pleases, yet he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, to prove any fact specifically admitted in another part. The provision requiring a verification of the pleadings shows that it was not the design to allow repugnant allegations, but to introduce the elemeut of truth in pleading, and compel the defendant to admit such parts of the plaintiff’s case as he could not conscientiously deny. If a fact sustaining the plaintiff’s right is expressly admitted in any part of the answer, that fact is to be taken as true against the defendant, and the plaintiff is relieved from the necessity of proving it, just as he would have been as to any fact admitted in an answer in chancery. The answer here having admitted the sale from King to the plaintiff, the plaintiff was entitled to judgment unless the defendants established fraud in the sale.

Ve see no error in the rulings of the court. The question of fraud was fairly submitted to the jury. It is true that one of the instructions asked for by the defendants’ counsel, which is abstractly correct, was refused. But we think there was no evidence to render it applicable. The instruction asked was, “ that if the jury believed from the evidence that the said King had a stock of goods in said store, and that he and said plaintiff had mixed and commingled their said stock so that said defendants could not distinguish said plaintiff’s goods, and that said plaintiff, when requested by said defendants, would not separate his said goods from said King’s, or point out the goods of said King so that said attachment could be levied thereon, then said defendants were justified in levying said attachment on the goods so mixed and commingled, and the defendants were entitled to their verdict.” This, as an abstract proposition, is correct. But there was no evidence tending to show that a part of the goods levied on were those which plaintiff had bought of King, and another part those which he had previously. If there had been any such evidence the plaintiff might have claimed that he was entitled to a verdict, even though the jury should have found the sale fraudulent and the goods bought of King subject to the attachment. If there had been any such pretense on the part of the plaintiff, or any evidence making any distinction between the goods attached, with respect to the point whether they had been acquired from King, then the instruction asked for by the defendants’ counsel should have been given. On the contrary, the only evidence offered on the subject was, that the officer called in an expert, and that he selected the goods which had belonged to King, and that these only were attached. The plaintiff did not, after that, offer any evidence to show that by mistake they had included goods which he previously had, but the case seems to have been tried on the theory that the goods attached were those acquired of King, and that if any part of them was subject to the attachment, then they all were. The instructions asked by the plaintiff’s counsel clearly imply that if the jury found fraud in the sale, they must find for the defendants. And the verdict of the jury being for the full value of all the goods attached, negatives the idea that there was any fraud, or that there was any question as to a part of the goods attached being subject to attachment and the balance not. Upon this state of the case we think the instruction was not justified by any evidence, and that the court fairly submitted the only question presented by the pleadings, which was, whether the sale from King to the plaintiff was fraudulent. That being so, the judgment will not be reversed for the refusal of a correct instruction inapplicable to the evidence.

The judgment is affirmed, with costs.