Snyder v. Berger

Opinion by Mr. Justice Sterrett: When this case was here before [18 W. N. C. 490, 4 Cent. Rep. 764] we held that, as against Shafer, from whom plaintiff below purchased the property in controversy, it was definitely settled in Jacoby v. Shafer, 105 Pa. 610, that the latter, being indebted to the former, was about to assign and dispose of his property with intent to defraud his creditors, and that the judgment in the case referred to was final and conclusive as to the fraudulent purpose of Shafer; hut, inasmuch as Berger was not a party to that suit, he was not precluded from showing that in good faith and for a full consideration he purchased the property from Shafer and had exclusive possession of it before the attachment issued. Snyder v. Berger, 18 W. N. C. 490, 4 Cent. Rep. 764. The only question, therefore, for determination on the second trial of this case was whether Berger was a party to the previously adjudicated fraud of Shafer. The burden of plaintiffs in error’s complaint now is that the question of Shafer’s fraudulent purpose, as well as Berger’s active participation therein, was retried and submitted to the jury. The effort of plaintiff below, to accomplish that result and thus, unintentionally, insure a reversal of the judgment, can scarcely be doubted; and that he did not succeed was not the fault of the learned counsel by whom he was represented. The only question, in regard to which we have any doubt, is whether he was not so far successful, in that direction, as to secure the affirmance of points calculated to mystify the real issue and thereby mislead the jury. [586] We find, however, that in his general charge, and by unqualified affirmance of defendant’s first and second points, the learned president of the common pleas so fully and clearly presented the only issue of fact in the case that it is scarcely possible the jury could have been misled. In affirming defendant’s first point he distinctly stated the facts that have been settled in Jacoby v. Shafer, 105 Pa. 610, and that, as to Shafer’s fraudulent purpose, the judgment in that case was final and conclusive. By unqualified affirmance of defendant’s second point, he instructed the jury that if they believed “Berger actively participated in the fraudulent purpose of Shafer (under whom Berger claims), Berger cannot recover and the verdict must be for defendant.” Thus the only issue of fact involved in the case was fairly presented and submitted to the jury in such a way that they could not fail to understand it. We are not prepared, therefore, to say that there is any error in either of the first five specifications. There was no error in refusing to affirm defendant’s third point; nor in saying to the jury that whether the sale was fraudulent as to Berger or not is to be determined from all the facts in the case. Defendant’s sixth and seventh points were rightly refused. The facts were not such as to warrant the court in saying that the alleged sale to Berger was fraudulent in law and therefore void. The testimony of Shafer, referred to in the last specification, was properly received. It was, of course, the right of the plaintiff to show, if he could, that his alleged purchase was bona fide and for full value. That was the fact in issue; and the testimony complained of was relevant for that purpose. The sixth to ninth specifications inclusive are also insufficient to justify a reversal of the judgment. Judgment affirmed.