Troy Fertilizer Co. v. Norman

HARALSON, J. 1. There was no error in allowing [680] claimant to testify, that she did not buy the claims which were in the hands of Lehman, Durr & Co., at the time of the execution of the bill of sale. That testimony had reference to the consideration of the deed, which consideration, as between her- and a creditor attacking the deed for fraud, she had a right to explain by parol, or even vary — by showing it was greater or less, if it was greater or less, if it was not of a different kind from that expressed. — Pique v. Arendale, 71 Ala. 95; Coleman v. Pike County, 83 Ala. 326 ; Lehman v. Howze, 73 Ala. 303; Robinson v. Moseley, 93 Ala. 75. 2. There was no error in allowing claimant to introduce evidence, showing that defendants, within the four months preceding the execution of their conveyance to claimant, had paid out to their creditors, and expended in their business, the sum of $20,000. They reduced their actual indebtedness by the amount they paid their creditors, and if they expended the money in their business, these fa.'ts weré competent to be considered by the jury, together with all the evidence in the cause, tending to show that defendants were not contemplating a failure and closing up of their business, and defrauding their creditors at the time. 3. The plaintiff requested 13 charges which were refused. The first was abstract. There was no evidence, that the claimant had any interest in the mercantile business of Normán Bros., or that the business was carried on for their and claimant’s joint benefit, or the joint benefit of the heirs of Hiram Norman and claimant. No. 2, if not otherwise bad, certainly was for that it postulates, that “the sufficiency of proof of a consideration to uphold the said deed, must depend upon the relationship existing between said mother and sons and the circumstances surrounding them, in the matter of the transaction so entered into, as well as their conduct in reference to it.” The sufficiency of the consideration for the deed, would depend, rather, upon the amount and adequacy of the value parted with for it, and whether it belonged to the claimant; and the intent with which the purchase was made should never be excluded. It was also subject to the vice of being argumentative. Nos. 3 and 5 were faulty, in that they do not hypothesize, that it was the intention of the xaarties, at the time that said sum of $2,000 was loaned, that it was after681 wards to be paid by the conveyance of partnership property. The third makes no reference to such intention at all, and the 5th only postulates the fact, that complainant had knowledge that defendants were not likely to be able to pay back except by a sale of the stock of goods to her, which is not the equivalent of the charge of an intention of the parties, at the time, that this should be done. Claimant had the right to lend to her insolvent sons, this money, and take the risk of their paying her ; but not, very true, if it was the agreement expressed or implied, that they, being insolvent, were to convey to her partnership property, and thus screen or shield it from partnership liability, of which agreement, there is no evidence. Charge 3, besides, ignores evidence tending to show that the debt alleged to be the debt of W. L. Norman had been assumed by Norman Bros.; that individual property enough to cover the amount of the alleged individual debt, had been included in the sale; and both charges also ignore the evidence tending to show that the$2,000 borrowed, had been used in the partnership business and not on individual account. Nos. 6, 9 and 13, if not otherwise, were certainly faulty in that they each ignore the evidence tending to show that the value of the property assigned was .largely less than the indebtedness of the partnership to the claimant, and less than such indebtedness, after deducting any interest the claimant may have had in said lot at Ramer. They also ignore any reference to the intention with which said conveyance was made — whether the purpose was an honest one to pay a bona fide debt to claimant, or to hinder, delay or defraud the creditors of the grantor. If the $8,000. note included the $1,115.,money expended for the lot and improvements at Ramer by claimant and her son William L., still, if the bona fide indebtedness of the firm to claimant without this, was more than the partnership property conveyed was fairly worth, this would not render the transaction fraudulent. — Fargason p. Hall, 99 Ala. 209; Hayes v. Wescott, 91 Ala. 151. And of the 13th it may be added, that it ignores any reference to the. fact, that individual property of the Norman Bros., more in value than the individual debt of W. L. Norman to claimant, was conveyed to her. No. 7 was faulty in more respects than one, and ignores the evidence tending to show, that the heirs gave [682] the money to their mother — the claimant — to be hers, and to use as she pleased, which they might have done without any' “formal or written relinquishment of their interest in the money,” which the charge postulates as a necessary condition to their making such a disposition of it. No. 8 is abstract. There is no evidence that the sons ever told their mother that they would fail, and would protect her by selling out to her. There was no error in refusing charge No. 10. The fair inference to be drawn from this charge is, that after having introduced proof sufficient to make out her case to the satisfaction of the jury, the fact of being the mother of her vendors, “cast on her the duty,” to still make other and fuller proof. The relationship of the parties was a relevant fact to be considered by the jury, dependent for its value on the other evidence in the case ; and, if from all the evidence, including the fact of relationship, the jury were satisfied there was no fraud in the transaction, the fact of the existence of this relationship, did not cast on the claimant the additional burden and duty of making other and clearer proof. — Teague v. Lindsay, (Ala.) 17 So. Rep. 538. Únder the facts hypothesized in charge No. 11 — which there was-evidence tending to establish — the jury were authorized to indulge the presumption pf fraud, casting on claimant the onus of explaining the vendors’ continued possession, so as to make that fact consistent with the bona fides of the sale. This burden would be discharged, if it were shown, that the vendors held the property not as their own," but as the agents of the vendee, for the latter’s convenience, or for purposes of sale on account of the principal. — Ullman v. Myrick, 93 Ala. 537 ; Mayer v. Clarke, 40 Ala. 269; Dearing v. Watkins, 16 Ala. 25. Charge 12 is so obscure as to be of doubtful meaning, and was properly refused on that account. — L. & N. R. R. Co. v. Hall, 87 Ala. 709. 4. We have examined the charges given at the instance of the claimant — seven in number. It must be said, that the plaintiff’s counsel has submitted no argument against them, nor made any suggestion of error in them, nor has claimant’s counsel submitted any argument in their favor. Both sides seem to take it for [683] granted that they were free from error. If any exists, the plaintiff has waived it. We decline to review them. For the refusal to give charge 11, the case must be reversed. Reversed and remanded.