such position was taken in the court below on the motion to set aside the special verdict, and no motion was made for judgment in favor of the defendants upon the special verdict for that reason.

It was, we think, well argued on the part of the learned counsel for the respondent that this argument ought not to prevail in this court, for the reason that if this position had been taken in the court below, either upon the motion for a new trial or for judgment in favor of the defendants, the respondents, in settling the bill of exceptions, would have insisted upon the insertion of the evidence bearing upon that question, and that such evidence might have shown that, notwithstanding the discrepancy between the amount mentioned in the mortgage and the amount then actually due to the mortgagee, the mortgage was given in good faith, upon the belief that it expressed the amount then actually due, or that it was agreed that the mortgagee should presently advance enough to make the indebtedness the sum of $800.

As the bill of exceptions does not pretend to contain all the evidence, we cannot say that there was not sufficient evidence given upon that point to satisfy the court and jury that no bad faith or fraud could be predicated upon the fact of the difference between the sum mentioned in the mortgage and the sum then actually due to the mortgagee.

The decisions in this court do not hold that a chattel mortgage which is given for a sum greater than is actually due the mortgagee is fraudulent and void in law. Neither of the cases cited by the learned counsel go to that extent. Butts v. Peacock, 23 Wis. 360; Blakeslee v. Rossman, 43 Wis. 123. In the case first cited the court, in discussing this point, say: "But even though it should be held that such a mortgage is not necessarily fraudulent, and that if the surrounding circumstances are such as fully to repel any idea of fraud, it may be sustained; yet when the surrounding circumstances are directly the opposite character the jury should be told that the mortgage is fraudulent."

This was said in a case when the mortgage on its face was for the security of $1,100. The proof showed that only $570 had been advanced thereon; that the mortgagee knew that the mortgagor was in embarrassed circumstances, and the consideration of the mortgage was more than the value of the mortgaged property. It was claimed by the mortgagee that the mortgage was given to cover future advances, but the evidence showed that all the advances which had ever

been made was the sum of $570. In the other case, the question as to any discrepancy between the consideration expressed in the mortgage and the amount of the actual indebtedness was not in the case, and was not decided or intended to be decided.

As said above, we cannot, therefore, in the absence of the evidence given upon the trial, say that the jury were not justified in finding that the mortgage was given in good faith, and not for the purpose of hindering or defrauding the creditors of the mortgagor, as the evidence of the surrounding circumstances might have been such as to repel any idea of fraud predicated upon that fact alone.

The seventh question submitted to the jury was as follows: "Did Stolper, after he gave the mortgage, continue to sell hard maple wood in the usual course of his business, and deliver the same out of the mortgaged wood?" Answer. "There was some of the mortgaged wood probably sold, but unbeknown to him."

We do not think, under the circumstances, this was an evasive answer to the question. It will be remembered that the mortgage was given on the eighteenth of November, and the defendants took the wood on the twentieth of November; but one whole day had passed between the giving of the mortgage and the taking by the defendants. The evidence is not preserved in the bill of exceptions, and the answer must, therefore, be held to have been supported by it, and that the sales of the mortgaged wood which had been made had been made by his employes, without the knowledge of the mortgagor.

The answer amounts to this: That sales had been made in the usual course of business by the employes of the mortgagor, but not with his knowledge; that they had been permitted to sell without being expressly forbidden, and without his having actual knowledge that such sales were made. It might, perhaps, be urged that the question ought not to have been submitted to the jury unless it was accompanied by another, connecting the mortgagee with a knowledge that such sales were being made. The mere fact that the mortgagor sold the property in the usual course of his business, after the mortgage was given, would not affect the validity of the mortgage as to the mortgagee, unless he knew such sales were being made, or had previously consented that they might be made.

The ninth question reads as follows: "Was it understood

by and between the plaintiff and Stolper, at the time when Stolper gave him the chattel mortgage, that Stolper should continue to carry on his business of selling wood, at his woodyard, and would sell and dispose of the said mortgaged wood and its proceeds, as part of his stock in trade, in the usual course of his business and trade as a wood dealer?" Answer. "There was no agreement made." This answer, the learned counsel for the appellants insists, is not responsive to the question, is evasive and indefinite, and is, in fact, no answer.

If the last objection be well taken, that the answer is not responsive, and therefore no answer, we think it was the duty of the defendants' counsel to have called the attention of the court to the fact when the jury rendered their verdict, and have requested the court to have again submitted the question to them for an answer. If the defendants were dissatisfied with the answer, because it stated that there was "no agreement" instead of "no understanding," we also think the objection should have been taken at the time, and the attention of the court and jury called to the supposed difference between "agreement" and "understanding. An "understanding" between the parties which would have defeated this mortgage, under the evidence in the case, must have amounted to an express agreement, for the reason that the time was so short between the making of the mortgage and the taking by the defendants that there were no acts of the parties intermediate from which an implied agreement could be inferred. The learned circuit judge, in his charge to the jury, to which no exception was taken by the counsel for the defendants, used the words "understanding" and "agreement" as synonomous. Webster defines the word "understanding" as "anything mutually understood or agreed upon."

In the case of Fisher v. Fisher, 5 Wis. 472, Justice Cole, in speaking of the necessity of proving an express contract between father and child to pay such child's wages whilst living with the father, in order to enable the child to recover pay for his work, uses this language: "But to have done this it would manifestly have been incumbent upon him to show that the ordinary relation of child and parent did not subsist between him and the defendant, and that it was the understanding of the parties that he should have compensation for these services." Justice Paine, in Kaye v. Crawford, 22 Wis. 320, a like case, in which it was held that an express contract must be shown to entitle the plaintiff to recover, says: "The testimony of the plaintiff does not show that the services for

which his father gave him the team were rendered in pursuance of any agreement or understanding that they were to be paid for. On the contrary, the fair inference from his own statements is that they were rendered without any such understanding."

Chief Justice Ryan, in Tyler v. Burrington, 39 Wis. 376382, in speaking of how an express contract might be proved in an action for wages between parent and child, says: "If established by competent evidence, as entering into the res gestæ, such expectations of these parties might give color to circumstances tending to show that they ripened into a mutual understanding—an express contract." It seems to us that in view of the fact that the learned lexicographer above cited. as well as the justices of this court, have declared the word "understanding," in the connection in which it was used in the question propounded to the jury, as synonomous with "agreement,” we would hardly be justified in holding that the jury intended to evade this question by saying there was "no agreement," instead of saying there was "no understanding;" and especially as the learned judge, in his instructions to them at the time, had used the words as meaning the same thing, without criticism on the part of the learned counsel for the defendants. We can see no force in the third objection taken to the verdict, and the counsel for the defendants made no argument to sustain it in this court.

The fourth and fifth objections relate to the sixteenth question submitted to the jury: "Was said mortgage given without consideration, and for the purpose of hindering, delaying or defrauding the creditors of said Stolper?" Answer. "It was not." The defendant objected to submitting this question to the jury on the ground that it was double and ambiguous; that it called for a conclusion or law, and under the testimony it could only be answered in the negative as a whole, since there was no dispute that there was a consideration for the mortgage. We think the objection that the question was double was obviated by the instructions given to the jury upon its submission. The court said:

"This is the last question, and a question propounded by the plaintiff. There is no question, gentlemen of the jury, that this mortgage was given for a consideration.

"The only question for you to determine, in answering this petition, is whether or not it was a fair, bona fide transaction between the plaintiff and Stolper, with a view of securing the indebtedness of Stolper to the plaintiff, or whether this mort

gage was a cover entered into by the plaintiff with Stolper with a view of benefiting Stolper, and for the purpose of defrauding, hindering or delaying the creditors of Mr. Stolper.

"If you find, as you will find as a matter of course, that the consideration was a good one, and find that it was a fair transaction between Stolper and the plaintiff, and that it was done with a view of securing and obtaining payment of that debt by the plaintiff from Stolper, and no understanding or agreement was had between Stolper and the plaintiff, by which Stolper was to derive any benefit from this mortgage, or be allowed to sell or dispose of this wood with a view of defrauding his other creditors, then your answer to this question will be in the negative, otherwise you will have to answer it in the affirmative."

Under this charge, not objected to by the defendant, the jury were instructed to answer the question as a single question, and as though that part of it which relates to the consideration was not in it; and it is clear that upon such instructions the question was treated by the jury as though it had been written: "Was said mortgage given for the purpose of hindering, delaying or defrauding the creditors of said Stolper ?"

And, as an answer to such question, the answer given by the jury is plain and direct, and is clearly not an answer to that part of it relating to the consideration, as the court and the learned counsel for the defendant agree that the undisputed evidence showed that it was given for a consideration.

The objection that the question called for a conclusion of law and not a fact we do not think tenable. The intent with which a sale is made or a mortgage given, when such sale or mortgage is questioned by the creditors of the vendor or mortgagor, is, in almost all cases, a question of fact for the jury, and it only becomes a question of law when the facts proved are such that the law conclusively presumes an intent to defraud. The question of fraudulent intent, in cases of this kind, are declared to be questions of fact by the statute. Section 2323, Rev. St. 1878. Hyde v. Chapman, 33 Wis. 391. Under our statute, in cases of this kind, it might be necessary, in taking a special verdict, to submit the question of fraudulent intent to the jury as a fact to be found in the case, in order to sustain a verdict in favor of the party alleging such fraudulent intent, even though the court might, upon the evidence, be justified in directing the jury to find such