*374Tbe following opinion was filed May 2, 1913:
Maeshall, J.(dissenting). My brethren do not seem to have given proper effect to tbe rule tbat, where a conclusion of fact, made by a trial court, results from mere inference from circumstances, admitted or clearly established, it is not entitled to any very great, if any superior, weight over the inference which any member of the appellate court may draw from the same circumstances as detailed in the record. Why is a trial judge’s inference as to the real purpose of the Motors Company'and its bank in resorting to the peculiar method which it did for getting the former’s product into this state and the equivalent in money out of it, defying plaintiff to realize on its claim, except at the company’s pleasure, superior to the inference which any one of us may draw here ? The trier did not have any advantages which we do not possess. The undisputed circumstances raised a question which appeals to ordinary common sense in the light of experience in life, as to what the real intention was. Certainly, the training here, need not defer on a question of that kind to the trial judge.
There is no rule of more consequence in promoting speedy,, economical, judicial, and just settlement of controversies, than the one that a trial judge’s findings as to matters of fact are not disturbable on appeal unless contrary to the clear preponderance of the evidence and,- — in 'the judgment of the writer, it is the doctrine of the court that all reasonable doubts should be resolved in favor of such findings in order to fully vindicate that they are due to prevail unless clearly wrong. But, like all good rules jt may be carried too far, resulting in injustice prevailing, unless its limitations are carefully kept in mind. It seems to me that has not been done in this case.
To give proper point to what I have said, it is necessary to portray the situation in my own way. It does not appear fairly from the findings. Many vital matters, *375though requested to be. included therein by counsel for appellant, were omitted. That, probably, is attributable to eoun-,sel for the prevailing party having been permitted to do the trial judge’s 'work of drafting his findings. Not until that bad practice shall have been eliminated and trial judges save themselves from the burden of work which the Code does not require of them and put' the saved labor into framing, in plain concise language, their conclusions as to the facts and the law, as the Code contemplates shall be done, will the closing of controversies' tried by the court have the appropriate judicial air about them.
Here are the circumstances appearing by the record, but not found in any satisfactory way, in the findings:
February 11, 1911, the Motors Company, a foreign corporation located' in Indiana, being in financial difficulty, proceedings were had between it and its creditors, practically all of the latter joining except plaintiff, resulting in a reorganization plan enabling the company to go on with its business, undisturbed .by any of the nonparticipating creditors. Upon failing to secure an independent arrangement' as to its claim, plaintiff notified the Motors Company that April 1, 1911, unless such claim should be sooner settled, it' would improve the first opportunity afforded of collecting it by attaching the Motors Company’s goods, shipped into this state. Thereafter the Motors Company continued its general business, one Waters, holding the office of president, with full-knowledge of all the facts aforesaid. He arranged with the Citizens Bank of Anderson, Indiana, to take the Motors Company’s draft's with bills of lading attached, representing automobiles in course. of delivery to customers, and advance ninety per cent, thereof, retaining ’the residue subject to its charges and the result of forwarding the drafts for 'collection, the residue of this ten per cent., at the option of the bank, to be applied on its indebtedness. Pursuant to this arrangement the Motors Company made a shipment of its goods to itself as consignee at Madison, Wisconsin, for delivery there *376to the Ilokanson. Automobile Company upon its paying the draft with bill of lading representing tbe purchase price. The bill of lading, without any notation thereon as to negotiability, attached to a draft on the Ilokanson Company, at Madison, Wisconsin, was discounted at said Citizens Bankj as such bank claims, or was deposited with it for collection. The draft was for $2,661. The bank advanced thereon $2,395, and placed the balance in a certificate of deposit' in its own favor to await return of the proceeds of the collection. The Citizens Bank forwarded the same with bill of lading attached, the draft properly indorsed by it, to the garnishee bank for collection at Madison.. Upon arrival of the goods and the draft at the destination and before presentment to the drawee, the property was attached, at the suit of plaintiff, and the Bank of Wisconsin, the collecting agent at Madison, was garnisheed. Thereafter, by assent of all interested, the Ilokanson Company paid the draft and the garnishee remitted all but $600, which it deposited with the Central Wisconsin Trust Company in lieu of the property attached, to await the result of the litigation. The garnishee deducted from the residue of the collection $10. for attorney’s fees and $5 for exchange, being all of the expenses of the Citizens Bank in respect to the matter, leaving $2,046, the amount remitted. Upon receipt thereof the Citizens Bank placed the same in a certificate of deposit and held it with the other certificate subject to final termination of the litigation.
Now, to my mind, the facts stated present a very plain case of transfer of property with mutual intent between the parties to the transaction to delay a creditor in the collection of its claim. I cannot see any Other explanation of the peculiar departure from the ordinary business methods of collecting for goods sold, by means of a draft drawn by the seller on the buyer and sent with bill of lading through the seller’s bank for presentation to the buyer. The subterfuge of going through the form of a sale of the draft to the local bank and it advancing part of the purchase price and setting aside the *377balance in a certificate of deposit to await results, ought not to deceive any one. If there were no ulterior motive, why did the Citizens Bank set aside ten. per cent, of the draft to insure it against contingencies ? What difficulties could have been anticipated except just such as occurred in this case? The explanation that this ten per cent, was in part to cover six per cent, collection charges, and made in such a way as to leave the impression that six per cent., flat, was meant, made a bad-looldng situation look worse. Counsel appreciated that on the argument and was moved to confess that what was meant was at the rate of six per cent, for the time intervening between the advance made on the draft and realization thereon which, manifestly, could only be a small amount as the time required to make the collection, in the ordinary course of things, would be but a few days. The explanation that the draft was handled the same as others, does not help matters. The fact, if it be a fact, that the Motors Company was accustomed to do its business that way so as to carry on its large business and pay the few creditors who did not choose to participate in the plan for avoiding a receivership, does not evert tend to show that the ulterior purpose did not exist, fatal to respondent’s ease. Both parties to the transaction of so handling the Motors Company’s property as to facilitate the sale of it in this state and avoid payment of appellant’s claim, appreciated that some scheme to that end was essential to circumvent appellant’s vigilance.
I think the court should draw the natural inference which the circumstances in this case so forcibly suggest, — do it quite as freely as if the trial court had not acted in the matter. If that were done I cannot doubt but that the result would be a reversal of the judgment.
BaeNes, J., also dissents.A motion for a rehearing was denied, with $25 costs, on October 7, 1913.