Bliss v. Crosier

Alleh, J. 1. The plaintiff’s first request for a ruling rested upon the provision in Pub. Sts. c. 157, § 98, that “ if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, that fact shall be prima [502] facie evidence of snch cause of belief;” In order to avail himself of this provision, it was incumbent on the plaintiff to make it appear that the transaction was not according to the usual and ordinary course of business of the particular person whose conveyance was the subject of investigation, that is, of Faulkner; not that such transactions were unusual in the general conduct of business throughout the community. Nary v. Merrill, 8 Allen, 451. This obviously presented a question of fact. There may be cases where a court can say that upon all the evidence no other conclusion is warranted except that the sale or conveyance was manifestly out of the debtor’s usual course of business. See Nary v. Merrill, supra; Walbrun v. Babbitt, 16 Wall, 577; Buffum v. Jones, 144 Mass. 29. In the present case, upon the facts disclosed, it was not the duty of the judge to rule, as matter of law, that the mortgage and assignment were outside of the usual and ordinary course of Faulkner’s business. Not enough facts are reported to take the case out of the general rule, which is that the question should be treated as a question of fact, and determined accordingly. Leighton v. Morrill, ante, 271. Killam v. Peirce, 158 Mass. 502. Bridges v. Miles, 152 Mass. 249. Stevens v. Pierce, 147 Mass. 510, 514. Buffum v. Jones, 144 Mass. 29. Alden v. Marsh, 97 Mass. 160. The report of the facts in evidence is rather meagre. It is not even stated "what Faulkner’s previous business had been, unless the same may be inferred from the recital in the assignment, nor have we before us copies of his prior chattel mortgages. It is obvious that the report does not contain all of the evidence which was introduced at the trial, and upon which the findings of facts by the presiding justice were based. The argument of the plaintiff rests chiefly upon the inferences which he contends should be drawn from the fact of Faulkner’s insolvency, and the character of the papers which he executed. But these are not sufficient to require the giving of the ruling requested, especially as we do not know what other evidence was in the case. 2. The plaintiff’s second request also was properly refused. Bennett v. Bailey, 150 Mass. 257. Blanchard v. Cooke, 144 Mass. 207, 222-226. Chase v. Denny, 130 Mass. 566. Judgment for the defendants on the finding.