Smith v. Ireland

Zane, C. J.: This is an action of claim and delivery, appealed from the first district court. The defendant pleaded justification, as marshal, under an execution issued on a judgment against W. S. Hopson, in favor of Idleman Bros., and that the property described in the complaint was owned by Hopson, and by him sold to plaintiff before the levy, to hinder and delay Idleman Bros, and other creditors in the collection of their debts. [188] Under the instructions of the court the evidence was submitted to a jury with directions to find on the following-questions: 1st. Was Hopson, at the time of sale, indebted to Idleman Bros. ? 2d. Did Hopson sell to plaintiff, to delay, binder or defraud his creditors generally, in the collection of their debts, or the firm of Idleman Bros. ? 3d. Hid plaintiff, at the time of sale, have notice that Hopson was indebted to Idleman Bros., and that the sale was made to hinder and delay them in the collection of this debt? 4th. What was the value of the property taken by defendant? 5th. Is the defendant entitled to a return of the property described in the complaint? To the fourth question the jury answered one thousand five hundred dollars; and to each of the others, simply “yes.” When considered with respect to the question alone the second answer is quite indefinite; but, viewed with the other questions and answers, the intention of the jury is sufficiently clear. The plaintiff’s counsel makes the point, that, the fifth interrogatory submitted a question of law to the jury. Section 1400 compiled laws of Utah, 1876, declares; “A general verdict is that by which they (the jury) pronounce generally upon all or any of the issues either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented as that nothing shall remain to the court but to draw from them conclusions of law.” This statute contemplates three classes of verdicts. 1st, general; 2d, special; 3rd, general and special. A general verdict is a direct statement of a conclusion of law, and an indirect statement of the facts from which the conclusion is drawn; it expressly affirms the law and inferentially the facts. The jury are directed by the court to indicate the facts found from the evidence by the statement of a conclusion of law. If they believe certain facts, they are told to state a certain conclusion, and if they do not believe such facts to state another conclusion. The court states the law applicable to the facts which [189] tlie evidence tends to prove, and if tlie jury find tlie facts tliey state tbe conclusion as charged. In case of a general verdict, the court states the law applicable to the facts before they are found by the jury, and in a special verdict the jury find the facts first, and the court declares the law applicable to them afterwards. In either case, tlie jury judge of the facts and the court of the law. In the third class of verdicts, the jury state the conclusion of law applicable to the material facts as to which there is but little or no room for controversy, without mentioning them in their verdict, and specifically name the material facts mainly contested on the trial, without stating the conclusion of law applicable to them; the court reserves the right to make that statement after tlie finding of tlie jury. There was no room for controversy as to the existence of the material facts of the case aside from those specifically found. The controverted facts essential to the conclusion of law, of which the fifth finding was a statement, were specifically stated in other findings. It was within the discretion of tlie court to direct a general or special verdict, or special as to the controverted facts and general as to those not controverted on the trial. We find no error in the submission of questions to the jury, or in the refusal to submit others requested by the plaintiff. And the verdict embraces all the material issues, and is sufficiently specific. The plaintiff insists that the findings of the jury are not sustained by the evidence. The alleged sale by Hop-son to plaintiff was on March 21, 1883. The defendant insisted that it was made to hinder, delay and defraud the creditors of Hopson, and that plaintiff knew it. The plaintiff testified he was tending bar for Hopson on the day of tlie sale, and had been with him for several months; that he knew Idleman Bros.; that Lachs was their traveling agent, and that he was in the saloon the day before the sale, when Lachs was there; that he knew Hopson was in debt to Idleman Bros., and heard Hopson say he must get money to pay his debts. On same day, but after sale, heard Hopson say he had sold out to raise money to pay his debts. That bill of sale to witness was made about [190] eleven o’clock a. m., March 21, 1883, and tbe preliminary invoice was made tbe preceding day. As shown by it, tbe cost o£ stock was $1,900. Mr. Lachs, traveling salesman of Id] eman Bros., testified that tbe day before tbe sale be bad conversation with Hopson in bis saloon, and plaintiff was there, and could have beard it; that witness asked Hopson for money, and said to him be was collecting that trip, and mnst have tbe money; that Hopson said he would try to raise some. Witness supposed' plaintiff beard tbe conversation; it occurred in tbe afternoon. Tbe next morning, about nine o’clock, bad another conversation with Hopson in bis saloon, and Smith was there; that tbe debt was mentioned, and Hopson then said be would raise witness some money; was then paying some to Woollier. Witness went to tbe saloon again tbe same forenoon, and Hopson paid him $100, and said be bad sold out to Smith. Several other persons were there. Tbe foregoing was tbe most important testimony for tbe defendant. It was contradicted in some important respects by tbe testimony for tbe plaintiff. Tbe relations of Hopson and plaintiff, their associations and conduct, their business and financial necessities and conditions, with tbe circumstances which preceded, attended and followed tbe sale, as shown by tbe evidence, with tbe other evidence, when all considered together, afford inference that tbe sale to plaintiff was made to prevent and binder tbe defendants in the collection of their debt. Tbe contention before tbe jury was chiefly as to tbe good faith of tbe plaintiff in taking tbe bill of sale from Hopson. Tbe evidence was conflicting, and tbe jury found tbe issues for tbe defendant. The authorities are to tbe effect that a court will not set aside a verdict unless satisfied it is against a clear preponderance of tbe evidence. In view of all tbe evidence, we are not satisfied the verdict is wrong. O. Yandercook, tbe officer who levied tbe execution, was asked by defendant’s counsel what Hopson said when witness demanded payment, and answered that Hopson said “be bad no property to levy on — bad money but would not pay, and that nobody could go through bis pockets.” Objections to tbe question and .answer were interposed by [191] plaintiff and overruled by the court and exceptions taken. Defendant’s comise] also asked witness, Mr. Lachs, what Hopson said to him on the same day but subsequent to the sale, and answered in substance as above. Objections to this question and answer were also made by plaintiff and overruled "by the court, and exceptions were taken by plaintiff. The admission of this evidence plaintiff assigns as error. Proof of a demand by the officer and the answer of Hop-son that he had no property to levy on was competent, but the further answer that he “had money and nobody could go through his pockets,” was incompetent, as was the answer of Lachs that Hopson said after the sale he “had money in his jiocket but would not pay, and nobody could get it.” Other evidence before the jury showed that Hopson had money after the sale and his refusal to pay more than the one hundred dollars paid, and twenty-five per cent of the remaining debt, which was offered in satisfaction, but not accepted. "Without the objectionable testimony there was sufficient evidence to show that Hopson had money which he refused to pay on his debt to defendant. The testimony objected to did not tend to prove that plaintiff acted in bad faith, because it does not appear he knew of the statements of Hopson or assented to them. Bad faith on the part of plaintiff was the question about which there was the most room for controversy. The probabilities are, the jury would have reached the same conclusion without the incompetent testimony. In view of all the evidence, we incline to the opinion that the jury did substantial justice and that the errors complained of are not sufficient to reverse this case. We find no other error in this record, The judgment of the court below is affirmed. EMERSON, J., and Twiss, J., concurred,