Bell v. Kendall & Co.

STONE, C. J — On September 23, 1889, Bell & Stallings, retail merchants, sold and conveyed their stock of merchandise to Mrs. S. A. Bell, the claimant, and placed it in possession of Thomas, as claimant’s agent. The goods invoiced at about four thousand dollars, and the consideration of the transfer was an alleged indebtedness of about four thousand dollars from Bell & Stallings to Mrs. S. A. Bell. This transfer left Bell & Stallings pretty largely indebted, with no means for paying their debts. In other words, it left them insolvent. On September 27, 1889 — four days after the transfer to Mrs. S. A. Bell — Kendall & Co. sued out an attachment against. Bell & Stallings, on the alleged ground that they had fraudulently disposed of their property. This attachment was levied on part of the merchandise which had been transferred to Mrs. S. A. Bell. She interposed a claim to it as her property, [493] and in that way inaugurated the present suit, which is a trial of the right of property. It is not claimed that any money was paid or promised by Mrs. Bell to Bell & Stallings. The consideration was the alleged debt from them to her. In the trial of the issue thus raised, the material issues were, was there a bonaficle debt; was or was not the property received in payment materially disproportioned in value to the amount of debt paid with it, or was there any trust or benefit secured to the grantor or seller. If not tainted in one of these respects, the transaction violates no rule- of law. — Pollah v. Searcy, 84 Ala.' 259. The real inquiry and contest in this case were, whether the claim of Mrs. Bell was a bona fide indebtedness of Bell & Stallings., The relationship of the parties exacted a fuller measure of proof than is required in transactions between strangers.— Thames v. Rembert, 63 Ala. 561; Hubbard v. Allen. 59 Ala. 283; Lipscomb v. McClellan, 72 Ala. 151; Gordon v. McIlwain, 82 Ala. 247. It is not shown when the debt to Kendall & Go. — the debt under which the attachment was sued out — was contracted, nor when it matured. If this were all the record shows, we would have no authority for fixing the date of indebtedness at a time earlier than the issue of the attachment, September 27, 1889.— Gordon v. McIlwain, supra. It is admitted, however, that it existed when the transfer to Mrs. Bell was made. Any admission by Bell & Stallings of an indebtedness to S. A. Bell, made before that time, whether verbally or in writing, or any statement by them which tended to show such indebtedness, was competent evidence for claimant, to be considered by the jury. — Bump on Fraud. Conv. 595; Dwight v. Brown, 9 Conn. 83. In the exclusion of the letter of Bell & Stallings, dated September 8, 1889, the Circuit Court erred. — Pulliam v. Newberry, 41 Ala. 168. If it had been shown that the debt to Kendall & Co. ante-dated the letter, this would have-excluded it as 'testimony. — Zelnicker v. Brigham, 74 Ala. 598. The testimony of James and Stokes was objected • to as a whole. If the objection had been confined to that part of their testimony which spoke of the offer of Bell, of the firm of Bell &- Stallings, to sell crackers at a reduced price, made-as it was after the conveyance to S. A. Bell, and not shown . to have been made with her knowledge or approbation, we-would hold its admission-was error- — Pulliam v. Newberry,, 41 Ala. 168. The objection, however, was to the whole testimony, and it was rightly overruled. — 3 Brick. Dig. 443, § 570. The exception • to the charges given at the instance of the-plaintiff, was to the whole mass. Many, if not ail of them,, are free from reversible error; and, of course, this exception [494] can avail nothing. — 3 Brick. Dig. 80, §§ 40, 41. Charge 5 of this series was only an argument, and ought to have been refused on that account, even if otherwise objectionable. Such charges, if free from other fault, furnish no ground for reversal, whether given or refused. All the charges asked by claimant were rightly refused. Charge No. 1 was not authorized by the state of the testimony. Charge No. 2 was misleading, in that it might be interpreted as instructing that the facts therein hypothesized were necessarily sufficient to found a verdict upon. The testimony was legal, but it was for the jury to pronounce upon its sufficiency. The-burden was-on the claimant to show that Bell & Stallings did owe her the debt she claimed; and if, under all the testimony, the jury were not reasonably convinced of the existence and good faith of the debt claimed to have been due her, their verdict ought to have been for Kendall & Co. Of the other chargés asked by claimant, No. 1 is not appropriate to the case. — Pollak v. Searcy, supra. No. 5 is vitiated by its last clause. Nos. 6, 8 and 9 are each fatally bad, and the court did not err in refusing to give them. For the single error pointed out, the judgment of the Circuit Court must be reversed. Reversed and remanded.