Ziegler & Co. v. Handrick

Mr. Justice Sterrett delivered the opinion of the court, It is unnecessary to consider in detail the thirty-nine specifications of error with which this record abounds. Very few of them require even a passing notice. The general charge and answers of the learned judge to the thirty propositions' submitted by counsel contain a very elaborate and, in the main, correct exposition of the law applicable to the facts which the testimony tended to establish. The cardinal question of fact for the jury was, whether the sale of the personal property in controversy by E. S. Handrick to his brother, the plaintiff in the feigned issue, was bona fide and valid, or fraudulent and void as to the creditors of the vendor. The numerous prayers for instruction, on every conceivable phase of the question, elicited expressions of opinion and explanations, so [93] fully covering the entire field of controversy that the jury could scarcely fail to have a clear understanding of the question upon which they were called to pass. In the language of defendants’ third point, the jury was properly instructed that if the plaintiff “was not moved to purchase the property of E. S. Handrick by honest and upright motives; if he knew of the indebtedness of E. S. Handrick, and took the property to place it beyond reach, to hinder, delay and defraud the creditors of E. S. Handrick, it would he fraudulent as to such creditors.” The defendants in their ninth point requested the court to charge that in a sale of personal property such as this is claimed to have been, “ the purchaser should take possession exclusive of the vendor ; that a holding of possession-concurrently by E. S. Handrick and It. T. Handrick, was fraudulent as to the creditors of E. S. Handrick and void.” The affirmance of this, “as a general principle,” was properly qualified by the remark, “ that It would not be concurrent possession if E. S. Handrick remained as a clerk or merely had desk room in the store.” In view of the testimony tending to prove that the vendor retained desk room in the store for the purpose of making settlements, and collecting outstanding accounts, claims, &c., some qualification such as that was really necessary. The rule of law as to the kind of possession necessary to constitute a valid sale of personal property was clearly and. correctly stated, and the testimony on that subject was quite sufficient to justify the jury in finding as they did. Indeed, as to all the property in question, except the horse, carriage, sleigh and harness, there was scarcely anything on which to base even a doubt in regard to there having been a complete change of possession ; and, as to those articles the testimony was such that the learned judge was right in answering defendants’ tenth point as he did, and submitting the question to the jury. The substance of the testimony is that the horse, carriage, &e., were kept at the barn of Mr. Osterhout under an arrangement made with him by the plaintiff below after the sale. If this was believed by the jury, it was a sufficient change of possession to pass title, if the sale was otherwise honest and valid. In affirming plaintiffs tenth point, the court said: “ If the jury believe there was a Iona fide sale of the goods in dispute to It. T. Handrick and such delivery of possession or other overt change of ownership as the nature of the property and the circumstances of the case admitted, then such delivery of possession is sufficient in law. In such case, it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the change of ownership.” The eleventh point of the defendants, in which the court was [94] requested to charge, “That under the whole evidence in the case the verdict must be for the defendants,” was rightly refused. There is nothing in the evidence that would have justified the court in saying that the sale, as to any part of the property, was fraudulent in law; and hence the case was properly submitted to the jury as a question of fact upon all the testimony before them. The only matter, in relation to which we have any doubt, is the rejection of the offers complained of in the 38th and 39th specifications, in connection with that portion of the charge covered by the 32d assignment of error. When, as in this case, a contract is assailed on the ground of fraud, great latitude is allowed in the admission of testimony tending to prove the fact; and, perhaps the.offers referred to come within the rule. But, conceding there was technical error in excluding the proposed testimony, it does not therefore follow that the judgment should be reversed. As was said in Morgan v. Weir, 1 Casey, 119, the party complaining must show not only that an error has been committed, but that he has been injured by it. We are far from being satisfied that plaintiffs in error were prejudiced by the refusal of the court to permit them to prove that the notes, book accounts, &c., not included in the sale, were worth but a small percentage of their nominal value. These assets were referred to by E. S. Handrick, in his testimony, as explanatory of his having reserved desk room in the store for the purpose of settling up, &c. In answer to a question as to the amount of the book accounts and notes, he gave their nominal or face value, but it was not pretended by him or any one else that they were worth that or anything near that amount. In sustaining the objection to the last offer the learned judge said he would admit evidence that E. S. Handrick had transferred to plaintiff “ all his available ¿ssets, but as no evidence has been given on the part of the plaintiff as to the market value of the book accounts, notes and judgments, but only evidence as to what they show upon their face, we deem it incompetent to enter into the question of the market value.” Again, in the general charge, he substantially told the jury there was no testimony to indicate their value, and hence they had no right to assume there was much value in them. In view of all this, in connection with the salient and uncontradicted facts of the case, it is impossible to believe the jury could have attached any appreciable importance to the value, real or apparent, of the assets referred to. It was clearly shown by the plaintiff, and not seriously controverted by defendants that the property was inventoried and sold at its full and fair value, — for more, indeed, than it would have brought at sheriff’s sale; that the avails of the sale were applied to the [95] payment of bona fide indebtedness of the vendor; and the evidence as to delivery and change of possession was quite sufficient to satisfy the jury on that point. The transaction was open and devoid of circumstances indicative of an intent to hinder, delay or defraud creditors. The worst that could be said of it is that the vendor intended to avoid the necessity of a sheriff’s sale, and apply his property to the payment of creditors who, as he supposed, had the strongest claim upon him. There was nothing illegal in that. We discover no error in the record that calls for a reversal of the judgment. Judgment affirmed.