Haben v. Harshaw

OetoN, J. It seems to us that the uncontradicted evidence in this case very conclusively proved that the original indebtedness for which the chattel mortgage of the firm of F..X. Haben & Oo. was given to the plaintiff, was the indebtedness of the firm, and this the jury maybe presumed-to have found; and therefore most of the errors complained of became immaterial, and were cured by the verdict. . It was certainly competent to show, by the manner in which the firm conducted their business, that this indebtedness arose out of it, and that it was partnership indebtedness; and therefore the questions objected to as to the manner in which the partners lived, and as to their domestic and business relations with each other, while conducting the business of the firm, were proper, as bearing directly upon the question in dispute. It seems that James Nagle, one of the partners, was the [383] fatber-in-law of F. X. Haben, and bad furnished some part of the money capital, but was very old and feeble; aud did no business personally, and that lie and bis wife lived with and were taken care of by F. X. Haben and bis wife, and that they paid no board, and no accounts were kept between them; and that Margaret Haben, the other partner, was the wife of F. X. Haben, and owned the store building; and that they all of them lived together as one family, over the store in which the goods were kept and sold, and received their joint support out of the business; and that this indebtedness was incurred for store and family expenses, and for the use of the general business. The matter complained of in the charge of the court, that the firm had the right to assume the' indebtedness, even if it were the individual indebtedness of F. X. Haben, and that none but existing creditors could question it, was quite immaterial in view of the above evidence; but, as based upon the assumption that it was the individual indebtedness of F. X. Haben, it was not error. See Sigler v. Knox Co. Bank, 8 Ohio St., 511, and other authorities cited in the brief of the respondent’s counsel. The matter of exemption was properly submitted to the jury, depending upon a severance of the partnership interests in the property; and there was no error in charging the jury that, in .case of such exemption, the fraudulent intent, ’in order to defeat the mortgage, need relate only to the part not exempt, because fraud as to any part of the debt or property would be as fatal to the mortgage as fraud as to the whole. It would be clearly incorrect to say that preference of creditors in giving the mortgage was “an evidence of fraud,” although such fact might be properly considered by the jury, with all of the other facts and circumstances connected with the transaction, as bearing upon the question. The charge of the court, therefore, that preference of creditors was not “ an evidence of fraud,” was not error. The language “an evi [384] dence of fraud,” is too strong, and might very well be understood by the jury as meaning conclusive ¶roof of fraud. The other errors complained of become technical and unimportant in view of the real merits of the case, supported by the undisputed evidence; and the very full and fair charge of the court on the main question, of the fraudulent intent of the transaction, coupled with the unquestionable legal proposition, that, if there was no intent to defraud, the firm had the right to prefer their creditors, was a substantially correct presentation of the whole case. The jury must be presumed to have found against the defendant on the question of fraud thus fairly and fully presented ; and we can find no error in the record which would justify a disturbance of the verdict. By the Oourt. — The judgment of the county court is affirmed, with costs.