First National Bank v. Lesser

PARKER, J. Fbaud: proof: presumption. This was an attachment proceeding brought by appellant against appellees, charging past and prospective fraudulent disposition and concealment of property. At the close of plaintiff’s case, the trial court, on motion of appellees, directed a verdict in their favor. Counsel for the respective parties then stipulated that this court may render final judgment upon the evidence submitted for appellant in the trial court, either sustaining or discharging the attachment as in the opinion of this court may be warranted by the evidence. It is to review the action of the court in directing a verdict for appellees and entering judgment thereon, that this appeal is brought, and the sole question is presented whether the evidence for appellant was sufficient to support a verdict in its favor. If so, under the stipulation, judgment is to be rendered by this court, sustaining the attachment; if not, the judgment below was correct, and is to be affirmed. The facts shown by appellant’s evidence are-substantially as follows: The defendants, Lesser and Lewinson, were a co-partnership composed of Louis Lesser and Sussman Lewinson. They began the dry goods business in the city of Albuquerque about the year, 1888, and continued in the same business, banking with the plaintiff bank, from that time up to the date of the attachment. Their deposits in the bank show an average of' about four thousand dollars per month. The firm continued in business up to the date of the attachment, which was on January 14, 1896. The last deposit was made January 7, 1896. On the morning of January 14, 1896, there was a balance to the credit of said firm of $266.56, which was withdrawn on the same day, after ten o’clock a. m., and before the attachment, which was prior to twelve o’clock. Immediately after the attachment, and before noOn of the same day, the defendant firm filed a deed of assignment conveying all its property to A. E. Walker, ássignee, for the benefit of creditors. At the beginning of the year 1895, Louis Lesser, a member of the firm, made a statement to M. W. Flournoy, the vice-president of the bank, showing that his firm was worth about $35,000. In February, 1895, one member of the firm made a statement to some New York creditors that the net worth of the firm was from $31,000 to $32,000. During the year, 1895, the defendant firm purchased goods for their store which were not paid for, and the claims for which were proved against the as-signee, amount to $25,291.55, of which sum $20,047.45 was purchased subsequent to July 1, 1895. The only property of the defendants turned over to' or found by their assignee was the stock of dry goods attached by the plaintiff, and the book accounts, the whole being appraised at the sum of $12,703.82. There was no money delivered to the as-signee. No attempt is made by appellant to show what disposition was in fact made of the money realized from the sale of goods during the year preceding the attachment, the simple fact appearing that a large amount of merchandise was owned and a large amount acquired on credit and’ not paid for, during that period, and a certain amount remained and was turned over to the assignee of appellees on-the day of attachment, leaving a discrepancy of many thousands of dollars unaccounted for. Neither is any attempt made to show what was in fact done with the money realized from sales during the seven days next prior to the attachment, nor the $266.56 withdrawn from the appellant bank on the morning of the attachment and assignment. It simply appears that this money was not turned over to the assignee under the assignment. Appellant rests its case upon the proposition that these large amounts of merchandise and these sums of money having been traced to appellees, they will be presumed to continue in the possession of the same or the proceeds thereof until the contrary is made to appear, and, consequently, the same not having been turned over to- the assignee. they will, in the absence of explanation, be presumed to have fraudulently concealed the same. If the appellees did in fact conceal &he money mentioned, it would be difficult to understand how the same could be done otherwise than fraudulently, for concealment for the purpose of preventing creditors from reaching assets would, under all ordinary circumstances, necessarily include a design tO' defraud them. But the plaintiff is met with the well recognized proposition that “if an honest motive can be imputed equally as well as a corrupt one, the former should be preferred.” Waite Fraud. Conv., Sec. 6; Bump Fraud. Conve. p. 562; 14 Am. & E. Ency. Law, (2nd Ed.), 512, notes 2 and 3; Lyman et al. v. Cessfort et al., 15 Iowa, 229; Dallam v. Renshaw, 26 Mo. 533; Herring v. Richards, 1 McCrary, 570; Gregg v. Sayre, 8 Peters, (U. S.), 244; Bank v. Schuman, 63 How. Prac. (N. Y.) 476. This proposition is otherwise stated: “If the facts upon which the conclusions of fraud are predicated may consist with honesty and purity of intention, that construction ought to be given them.” 14 Am. & E. Ency. Law, (2nd Ed.), 512. Applying this proposition to the facts in this case, it seems clear to us that the judgment of the court below was right. The first fact presented by appellant is the receipt of large amounts of 'merchandise by appellees which are not accounted for in the assignment, nor are the proceeds thereof. It appears from the record that appellees kept books of account and that counsel for appellant demanded inspection of the same. An examination of these books would necessarily disclose what became of the goods and the proceeds of the sales of the same, if the books were honestly kept. Thus it would be made to appear whether the goods were sold for cash, and if so who got the money; how much, if any, was sold on credit, and whether the accounts had been collected. But these books are not offered by appellant, and there is. nothing before us throwing any light upon the actual conduct of their business by appellees. For aught that appears, appellees may have sold enough goods on credit for which they never received payment, to account for the discrepancies mentioned. Or they may have made bad investment sufficient to consume all of the large amount unaccounted -for. The appellant has seen fit to' furnish us no light on the subject, when the evidence was at hand, and no inference can be drawn, it seems to us, except in favor of the honesty of appellees’ transactions. On the other hand, if the books were dishonestly kept, and a portion of the cash received systematically abstracted, this fact must be capable of demonstration from the books therm-selv.es. Yet not a word is offered pointing in this direction. The same may be said in regard to the fact of no deposits having been made for seven days next previous to the assignment. If sales were made during those seven days the books must show the amount of cash received, and what became of the money. If the money went into improper hands, or if the books fail to- show what became of the money, a condition might arise requiring explanation by appellees.- And so with the deposit which was withdrawn. If the books fail to show what became of this money, or show that appellees retained it, a very different case would be presented; but no such proof is offered. This money, as well as that received during the seven days prior to the assignment, may have all been used for perfectly lawful purposes for aught we know from this record. Not a single fact appears which points unequivocally to concealment, or which may not as well be accounted for in consonance with honesty as with dishonesty. It may be that appellees systematically robbed their business of money and secreted the same from their creditors; that their transactions were reeking with fraud; but there is no evidence before us from which we can reach such a conclusion. On the other hand, their transactions may all have been honest. We can not, from this record, conclude what the real fact is. The facts consisting as well with honesty as with dishonesty, the law presumes in favor of honesty. The judgment of the court was evidently correct, and will be affirmed. And it is so ordered. Mills, C. J., McKie and McMillan, JJ., concur; Crum-packer, J., having tried the case below, took no part in this decision.