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D. M. Sechler Carriage Company v. C. Lane
Me. Presiding Justioe Harker
delivered the opinion of the Court.
Appellant, a corporation, brought an action of replevin against appellee to recover eight buggies and two surreys, which it had consigned to Hill and Fread, dealers in farm implements., at Bethany, Illinois.
The sheriff not being able to find the goods described in the writ, there was a trial upon a count in trover, resulting in a verdict and judgment for appellee.
The record shows that the goods were consigned to Hill and Fread in May, 1896, under an agreement to sell the goods of appellant’s manufactory for that year on commission, consisting of the net surplus on sales over and above the invoice-price.
In September Hill sold his interest in the business to Fread Fread assuming the debts of the firm, and within a few days thereafter Fread traded his entire stock of goods, including the goods in controversy, to appellee for 160 acres of Nebraska land.
It is contended by appellant that such trade was made by Fread for the purpose of defrauding his creditors, and that appellee had notice of such fraudulent purpose. Appellee swore that at the time of making the trade he had no information of appellant’s claim upon the goods, and in that he is not contradicted.
But it is insisted that the conduct of Fread was so strange and suspicious as to put him upon inquiry, which, when made, would have given him notice of Fread’s fraudulent purpose. That, of course, ivas a question for the jury. It was the pivotal point in the case and.it was highly important for the jury to be correctly instructed upon it.
In a case of this kind to show that the purchaser had actual knowledge of the vendor’s intention to defraud, is not required. If the circumstances surrounding the transaction Were such as to put a prudent and cautious man upon inquiry, that would be sufficient. If the purchaser closes his eyes against those lights which, if pursued, would disclose the fraudulent purpose of his vendor, he must suffer the consequences as though he had received actual notice. Doyle et al. v. Teas et al., 4 Scam. 202; Aetna Life Ins. Co. v. Ford, 89 Ill. 252; Bent v. Coleman et al., 89 Ill. 864.
The trial court .not only refused to give to the jury that principal of law when asked by appellant, but gave the following erroneous instruction in behalf of appellee.
2. Fraud can never be presumed, but like any other fact, must be proven by a preponderance of the evidence, and in this case before the jury would have a right to find that the conveyance from Fread to the defendant, Lane, was not a Iona fide transaction, the plaintiff must prove that fraud entered into such transaction, and this must be shown from the evidence, and it must also appear from the evidence, that Lane as well as Fread participated in such fraud to the extent of having knowledge of Fread’s. intent, and unless the plaintiff has shown by a preponderance of the evidence that Fread fraudulently conveyed the property in controversy to Lane for the purpose of hindering and delaying his creditors, and that Lane knew of such fraudulent. intent, and thereby assisted the said Fread in such fraudulent transaction, the verdict of the jury should be for the defendant.
Appellant’s refused instructions, numbers five and seven, should have been given.
For the error of the court in giving the above quoted instructions for appellee and in refusing the two mentioned for appellant, the judgment will be reversed and the cause remanded for another trial.