Zielke v. Morgan

ORton, J.

It is conceded- that the sale of the goods taken by the respondent, on the attachment against Frederick Zielke, Jr., by him to the appellant, was fraudulent and void. But it is claimed that a part of the" goods so taken, of the value of '$200, was the lawfitl exemption of «Zielke, Jr., and therefore passed by such sale to the appellant; and a part, of about the value of $37, was purchased by the appellant from other persons than Zielke, Jr.; and á part, of about the value of $262, the appellant had replevied from a constable who had taken them previously on an attachment against Zielke, Jr., and had given bond for the same; and that therefore these several classes of goods belonged absolutely to the appellant, irrespective of. such fraudulent sale.

The first question- arises, as to this claim of exemption, whether the goods so claimed to be exempt were not- lawfully required to be specifically claimed and selected at the time of the levy or before the sale. This is not a specific exemption, which, it has-been held by this court, need not be claimed by the debtor, but which the officer takes at his risk, as in Gilman v. Williams, 7 Wis., 329 , and many other cases; nor is it a case where all of the property does not exceed the exemption, and which is therefore specific. It is an exemption of goods as stock in trade, of the value of $200, part and parcel of a stock of goods of the value of several thousand dollars, which must necessarily be selected and set apart, and rendered specific and certain, by some one, and the question is, by whom? Such an exemption has been recently held by this court to be so uncertain and undetermined as to render a chattel mortgage absolutely void for uncertainty, in which such an exemption is excepted and reserved: Fowler v. Hunt, 48 Wis., 345 . Within the reason of that case it might properly be held that *566 such an exemption is void' and inoperative until made certain by selection. ■ ■

In Maxwell v. Reed, 7 Wis., 582 , it is virtually, held that any exemption may be waived by the debtor at the time of the levy; and in Russell v. Lennon, 39 Wis., 570 , it is held that the right of exemption is a personal privilege of the debtor individually, and which cannot he exercised 'by a .partnership; and that each of the partners may sever and claim each his exemption in the partnership, property. 'This would seem to imply that, as to an uncertain exemption like this, each partner must make definite and certain his exemption by a specific claim and selection. In Fick v. Mulholland, 48 Wis., 417 , it is taken as granted that a selection of exemption must be made by the debtor himself, by treating as a material question of fact whether it had been so made. The true principle, sustained by reason, and, as we think, by the better and more numerous authorities, is, that whenever the exemption is not specific and certain, and a selection is necessary, that selection devolves upon the debtor. In such a case the law has favored him with the personal privilege of a choice and election what specific articles, to be taken out of the general stock, he will claim and withhold as his exempted property, of the value of $200. That being so, he would certainly not be hound by the choice and election made by the officer, either in his absence or in his presence, unless assenting to it. In such a case the law is correctly stated by Mr. Thompson, in his work on Elomestead and Exemptions, § 821: “ The debtor has a right to elect what property, not exceeding the 'statutory limit of value, he will retain. Such election must be made at the time, or within a reasonable time after notice from the officer that he has made a levy; and, in default of such election and notice to the officer, the debtor cannot recover damages for a wrongful conversion of the property.”

This statement of the law is supported by many authorities cited by the author, and many more cited by the learned conn- *567 sel of ,the respondent, and is unquestionably correct as applied to this case, in which no selection of the exemption was ever made by either Zielke, Sr. or Zielke, Jr. This disposes of the instruction relating to the exemption, which was, substantially, that the plaintiff was not now in a position to claim that any part of the goods were exempt.

The exceptions to the giving and refusal of instructions relating to the other two classes of goods so claimed by the appellant, must be considered in view of the rule in Scheike v. Johnson, 39 Wis., 384 , and Dorsey v. The Phillips & Colby Const. Co., 42 Wis., 584 , “ that the whole charge of the court must be construed together, and with reference to the issues and the evidence in the case;” and, although some parts of it may not be strictly correct as abstract propositions of law, yet, if the jury were not misled as to the law applicable to the case, such objections will be disregarded. There was evidence which would have warranted the jury in finding, and the jury must now be presumed to have found, that these classes of goods were so mingled in and with the general stock of goods so taken by the respondent on the attachment, as to be indistinguishable, except by the appellant himself, and that the respondent had no knowledge of their identity or that they were embraced in the stock, and that the appellant said nothing about them at the time of the levy. The jury are now presumed to have found true also the following testimony of the appellant himself: Question. “ At the time the officers- made the attachment, what did you say about the ownership of the’ goods, and when you got them ? ” Answer. “ He spoke first with my son; told me he wanted to take the goods out of here. Then I went up to him and said, £ Mr. >Morgan, these are my goods; they don’t belong to my son; I bought them.’ I told him I bought them of my son; I said nothing more to him.” There was evidence also that the bill of sale from Frederick Zielke, Jr., to the appellant, was exhibited in connection with these statements. These being *568 .the facts which the jury may be presumed to-have foipnd, the instructions given and those refused must be construed with reference to them, and they really come to the point of difference and materiality upon the single question' whether it was the duty of the appellant to have demanded these particular goods and to have attempted a selection of them at the time of- the levy or before the salé. The instructions asked substantially assert that it was not, and that the respondent was bound to know, and took the whole stock at his risk. The instructions given substantially assert that it was the duty of the appellant to have demanded and pointed out these particular goods at the time, and in default thereof he waived his right. The authorities elsewhere seem to be in great conflict as to the duty of the claimant of particular goods, which he has indiscriminately intermingled with the goods of the defendant in the attachment, where he is present at the time of the levy, and the officer has no knowledge or information that his goods are so intermingled,' and is unable to identify or separate them. But the principle more consonant with reason and justice, and we think sustained by the better authority, is, that it is the'duty of the claimant to demand his particular goods under such circumstances, and assert his claim, and in default thereof he waives such claim altogether.1 Perhaps this, identical question has never been decided by this court, but it would seem that the same principle has been recognized in, cases strongly analogous, as in Jenkins v. Steanka, 19 Wis., 126 ; Root v. Bonnema, 22 Wis., 539 ; Single v. Barnard, 29 Wis., 470 .

But this case need not be rested on this principle alone, for we have seen that there was testimony that the officer did call on the appellant to assert his claim to the goods, and he did assert it, and predicated such claim solely upon his bill of sale and purchase of the goods from his son, Frederick Zielke, Jr., and did not then pretend' that he had any other claim to the stock of goods or any part of it. Here was most clearly mat *569 ter of estoppel. The appellant not only did not claim any parts of the stock by any particular right, irrespective of his purchase from his son, but made a claim utterly inconsistent with such particular right by claiming the whole stock by this fraudulent purchase, and thereby induced the respondent to believe that he had no other right. This not only constituted a waiver of his particular right by failure to claim it at the proper time, but it should operate as an estoppel. The appellant “ should now be bound by the’State of facts which he then induced the respondent to act upon.” Bigelow on Fraud, 438; Vilas v. Mason, 25 Wis., 310 ; Perry v. Williams, 39 Wis., 339 .

Some exceptions were taken to the introduction of evidence *by the counsel of the appellant, but are not urged here, and we can perceive no ground for them. The exception taken to the submission of more questions to the jury than first intimated by the court, by which the learned counsel of the appellant lost his right of argument to the jury upon such other questions, was clearly waived by his voluminous requests after-wards to charge the jury upon those questions.

By the Court. — The judgment of the circuit court is affirmed, with costs. *