Blass v. Anderson

1. Practice as to general findings. CockriÉb, C. J. Whether J. S. Anderson was carrying on business through B. B. Anderson as his agent; or whether J. S. Anderson held himself out as a partner in business with B. B. Anderson, were questions of fact for the jury and not of law for the court. A finding for the plaintiffs, Blass & Co., would have been sustained without hesitation. But there 'was a general finding- of fact in favor of J. S. Anderson, and there were no declarations of law requested or made. The case stands as. though a properly instructed jury had returned a verdict for the appellee. We cannot say there is a failure of proof, because it is probable — that is, it is not altogether unreasonable — that every uncontradicted fact that points, to J. S. Anderson’s liability may be explained by reference to other facts or circumstances in proof. The finding cannot be disturbed for want of evidence to sustain it. % Sale exe culed on Sunday valid. If it be conceded that the contract of sale was consummated on Sunday, the appellant can derive no advantage from that fact. If the property had been seized un.der the writ of attachment before possession was taken under the void contract of sale, the appellant’s lien under the writ would have taken precedence of J. S. Anderson’s claim of ownership. Shaul v. Harrington, 54 Ark. 305. But Anderson was in possession under the contract before the order of attachment issued and when it was levied. His possession was good against his vendor. It was therefore good as against the creditors of his vendor, unless they could show that the sale was fraudulent. Smith v. Bean, 15 N. H. 577; Smith v. Foster, 41 id. 215; Horton v. Buffinton, 105 Mass. 399. The fact that a sale is illegal, because against the prohibition of a statute, does not establish that it is fraudulent as to creditors. We cannot say that the proof establishes an incontestable case of fraud. The court’s finding must therefore stand. Affirm.