Stevens v. Pierce

Devens, J. The bill of exceptions in the case at bar is somewhat obscure, and the counsel, according to their respective briefs and arguments, do not concur in their interpretation of it, or in their view of the question intended to be raised. The action was brought by the plaintiff as assignee of Adams, an insolvent debtor, to recover the value of certain personal property, alleged to have been purchased by the defendant in fraud of the insolvency laws of the Commonwealth; and one ground, if not the only one, upon which the plaintiff sought to establish his case, was that the purchase was made in order thereby to effect a preference for the defendant’s wife, who was a creditor of Adams. The defendant asked the presiding justice to rule, that, upon the evidence, the last clause of § 98 of c. 157 of the Public Statutes was inapplicable to the case at bar, and that the circumstances attending the sale as recited were not prima facie evidence of a reasonable cause of belief on the part of the defendant of the insolvency of Adams. The presiding justice refused this ruling and ruled, “ that if the property, or the main part of it, was used by Adams in his business as grocer, and if the money borrowed by Adams of the defendant’s wife was for use in his business, and if Adams sold the property to the defendant to be applied in payment of the note to the defendant’s wife, then it was for the jury to say whether or not the sale was made in the usual and ordinary course of the debtor’s business, and that, if they found it was not, that fact was to be taken in this case as prima facie evidence of a reasonable cause of belief, on the part of the defendant, that Adams was insolvent, and that the sale was in violation of the insolvent laws, and that the last clause of § 98 was applicable in the case at bar.” The plaintiff contends that the only question raised by the exceptions is whether the provision of the Pub. Sts. c. 157, § 98, that sales, etc. not in the ordinai’y course of business shall be prima facie evidence of a reasonable cause of belief by the pur [514] chaser in the insolvency or contemplated insolvency of the seller, is applicable to sales, etc., under § 96 of the same chapter, which relates to fraudulent preferences of creditors. If this is the true .construction of the exceptions, the case at bar does not require discussion, as it is fully settled that the provision referred to applies to both sections. Nary v. Merrill, 8 Allen, 451. Metcalf v. Munson, 10 Allen, 491. These decisions are upon §§ 89, 91, of the Gen. Sts. c. 118, but the Pub. Sts. c. 157, §§ 96, 98, are respectively re-enactments of these, with very slight and purely verbal alterations. The defendant contends that the question raised by the exceptions is whether the sale to the defendant was of such a character as to afford prima facie evidence of a reasonable cause of belief, on the part of the defendant, of the insolvency of the vendor. His request for instructions on this point was, as before stated, “ that the circumstances of the sale, as before recited ” in the bill of exceptions, “ were not prima facie evidence of a reasonable cause of belief, on the part of the defendant, of the insolvency of Adams.” This instruction could not have been given as matter of law, if there was any evidence to be considered by the jury upon the inquiry whether the circumstances of the sale indicated a sale of the property employed in his business, and thus connected with it, and yet not according to the usual and ordinary course of it. It would be sufficient to say that we cannot review the refusal to give this instruction, when it appears, as it does by the bill of exceptions, that there was other evidence, not reported, that Adams was insolvent at the time of the sale to the defendant, and that the defendant had reasonable cause to believe him so, as such facts must necessarily have qualified and characterized the transaction of the sale. But waiving this, there was evidence of circumstances attending the sale proper to be submitted to the jury in determining its character. The defendant’s wife was a creditor of Adams on the same day that he sold out his entire stock in trade to Stone and Carter, and so much of the personal property, such as horses, wagons, etc., as they desired to buy ; he offered to the defendant the remainder of the personal property for three hundred and fifty dollars, and, although the defendant considered it worth only two hundred and sixty-five dollars, he made no [515] attempt to obtain it for a less price, but immediately accepted the offer. He received a bill of sale, and took possession of the property, and gave an order on a savings bank for the amount, where at the moment he had no money, but where he subsequently deposited four hundred dollars in the presence of the attorney of Adams, who then drew the money and gave it to Adams, who left the State. Before the money was paid, Adams was informed in the defendant’s presence that a warrant for his arrest had been issued. While it was not directly shown that any of this money came back to the defendant, or that it was paid to his wife, the utter improbability that the defendant would pay for property so much more relatively than he believed it to. be worth to the debtor of his wife, whose money had been advanced to aid him in entering into business, and the other circumstances adverted to, tended to show that the whole transaction by which the property of Adams had been transferred to the defendant was a simulated one. To the ruling of the presiding judge, which on the facts therein set forth, if found by the jury, submitted to them the question whether the sale was one made in the ordinary course of business, the defendant has no just ground of objection. Exceptions overruled.