Edson Keith & Co. v. McDonald

Wall, P. J. The appellants sued out a writ of attachment against the appellee, on the 14tli day of June, 1888, alleging an indebtedness of $854.79, and that the debtor had within two years fraudulently conveyed or assigned a part of her effects, so as to hinder or delay her creditors, and that she had within two years fraudulently concealed or disposed of her property, so as to hinder or delay her creditors. The defendant, by sworn plea, traversed the facts stated in the affidavit, and the issue thus made was tried by the court, a jury being waived, and found for the defendant. It is insisted the court erred in so finding and refusing to hold the second proposition of law submitted by the plaintiffs, The first ground for the writ, as alleged in the affidavit, viz., fraudulent conveyance of property to the injury of creditors, was very clearly not supported by the proof. This charge rested wholly upon the gift of apiano and some furniture by the defendant to her minor daughter, in October, 1887. It does not appear that there was any fraud in fact attending this gift, nor are the circumstances such as to make it fraudulent constructively. The piano had been intended for the daughter when purchased, and a part of the furniture was bought with the money of the daughter—-money that had been given her in small sums at various times. The gift was not unreasonable under all the circumstances. Moreover, it could not have been to the injury of these creditors as respects the debt now in suit, which debt was not contracted until several months thereafter. The act complained of in the affidavit must be injurious to the attaching creditor, though it is sufficient if the affidavit charges, in the language of the statute, that it operated to delay and hinder creditors, without the particular specification of injury to the plaintiff, which is to be implied. Zeigler v. Cox, 63 Ill. 48. The second charge of fraudulent concealment or disposition of property to the delay and hindrance of creditors, was predicated upon the defendant’s refusal to pay the debt, and the denial that she had money with which to pay, which denial was untrue. The facts as to this part of the case are, in substance, that an attorney of the plaintiffs called on the defendant and requested payment of the account. The defendant, who was conducting a millinery establishment, said she had no money nor anything, except her stock and outstanding accounts, amounting to $500; that she would go out and collect some money and see him at the hotel at ten o’clock. She sent out an agent who collected some . $14 or $15 only, and reported it to her. She did not go to the hotel as she had promised, but went to the bank where she kept her account, and drew out her balance, amounting to about $275, and paid two small debts due to local creditors, amounting to about $80, when she was met or overtaken by the attorney, who had been following her and observing her movements, and when he reminded her that she had not called at the hotel and again urged payment, she told him she could not pay, because she had not collected any money and had none. He replied that he was advised she had money, when she answered that she had no money, and could not pay him until she got it. He thereupon swore out the writ. She proceeded to payout about $112 more on her local indebtedness before the writ was served. This amounted to no more in effect than a refusal to pay the money she had, being about one-third of the p’aintiff’s claims, and using the same for other purposes, coupled with a denial in general terms that she had money. Had this denial been omitted it can not be supposed that there was such concealment or disposition of property, fraudulent and to the injury of the creditor, as is intended by the statute. She had the right to prefer one creditor to another, and so doing, (while carrying on her business and not being about to yield dominion of her property for the benefit of creditors) was not fraudulent, nor in a legal sense was it such hindrance or delay of creditors as might furnish ground for attachment by those who were unpaid. Then, what legal significance is there in her denial % She was not bound to tell the attorney how much money she had. There were no such relations between them as entitled him to a truthful answer on that subject. She was unable to pay the entire claim. It was not long past duo, and there may have been very good reasons for using what money she then had in payment of her home creditors. That was her business. She was perhaps annoyed by his persistence, and made a reply which was not literally true, though in the sense that she was unable to pay him, it was substantially true. The denial, whether true or false, did not injure the creditor, and the whole act falls far short of the statute. We think the court properly found the issue for the defendant as to this branch of the case. It is not necessary to liold whether money is property within the meaning of the statute, or whether the concealment of money may not, under some circumstances, furnish ground for attachment.' We hold merely that the facts of this case are not sufficient. The proposition of law tendered by the plaintiffs, which in substance justified and required a finding for plaintiffs on the facts stated, was properly refused. The ease of Powell v. Matthews, 10 Mo. 49, referred to by appellants, and which is cited in Drake on Attachment, is not in point. There the defendant was under obligation by the arrangement with his creditors, to make weekly accounts of sales and turn over the proceeds, but he had sold a considerable quantity for cash and made no return of the proceeds. This was held a fraudulent concealment within the meaning of the Missouri statute. It is very unlike the case at bar. We find no error in the record and the judgment will be affirmed. Judgment affirmed,.