Dumas v. Clayton

Mr. Chief Justice Shepard delivered the opinion of the Court: It is clear from all of the circumstances surrounding the transaction in question, as well as from Neill’s admission that he did not recognize the obligation of plaintiff’s demand and did not intend to pay it, that he took advantage of the time permitted to elapse between the announcement of the court’s opinion and the carrying of the same into a decree, to dispose of the only property that he had subject to execution on that decree, in order to prevent its collection. As regards the conveyance to secure Dumas, which Neill executed with the intent to defraud the plaintiff, if Dumas knew of that intent and entered into the transaction, not only to secure a debt due to himself, but also to aid Neill in the execution of his purpose; or if he did not in fact actually pay over to Neill, without recall, the $3,000 alleged to have been loaned to him, and for which the security was in part given, then that conveyance is void as to the plaintiff, and the court was right in so decreeing. The second ground is mainly relied on in support of the decree. If the plaintiff, having examined the defendants, is not concluded by their evidence to the fact of payment and of the motives of Dumas and Neill in the transaction, we think the-evidence is of such a character as to support the conclusion deduced therefrom hy the trial justice. Dumas and Neill were intimate friends of many years standing, and had been engaged in at least one speculation together. But few checks could be produced showing payments to Neill by Dumas from 1902 to 1905, on which the alleged indebtedness of $3,500 was founded. It is true that one cannot reasonably be expected always to preserve canceled checks; but, as some were preserved, no satisfactory reason was given why all were not573 Again, two other checks bear date March 28, 1905, and April •4, 1905, respectively; the first being for $210, the second for $80. These dates lie between the announcement of the court’s opinion in the plaintiff’s original suit, and the actual entry of decree in accordance therewith. Although Neill must reasonably have apprehended that the conveyance would be attacked, he testified that he immediately destroyed the notes aggregating $3,-500, which Dumas claims to have surrendered to him. If these notes had once existed, and there was nothing in their appearance to excite suspicion, their production would have an important bearing on the bona tides of the transaction. Again, it is apparent that the value of Neill’s equitable estate in the lots conveyed was worth much less than the amount of the two notes which he secured. The evidence indicates that they were worth not more than $7,500 or $8,000, and were subject to prior mortgages for $2,600. Another circumstance is that, while his interest a year afterwards was sold and bought in by Dumas for $5,-300, Dumas surrendered to Neill both notes, representing $6,-500 and accrued interest. The defendants had the burden of showing the actual payment of the $3,000 in cash, and their evidence on that point is, to say the least, far from satisfactory. A check for the amount was given to Neill and was paid on April 8. It bears not only the indorsement of Neill, but that of L. Melendez King, who was Dumas’s attorney in the transaction. On the same day a cash deposit of $3,010 was made by Dumas. While he was able to remember two other deposits of smaller sums during the same week, he was not able to state the source whence this last and greater deposit had been obtained. The withdrawal and deposit were both in cash, and took place on the same day. Dumas rested his case on the evidence elicited from himself and Neill in regard to this transaction. L. Melendez King, who was Dumas’s attorney in the transaction, and who indorsed the Neill check, was made a party to the suit. While he participated in the trial of the case as attorney for some of the parties, he neither answered the bill nor was nailed to testify in regard to the payment of the cheek. If the [574] ro oney was actually received by Neill, kept by him, and not redeposited by Dumas, in person or by representation, on the same day, then King’s evidence would be quite important to show the fact. The failure to call him as a witness is a circumstance lending additional doubt to the genuineness of that payment. The contention of the appellant is substantially: That, as-Dumas and Neill were introduced and examined by the plaintiff, she is concluded by their statements as to the indebtedness, the payment, and the good faith of the defendants. In support of' this contention they cite Dravo v. Fabel, 132 U. S. 487, 33 L. ed. 421, 10 Sup. Ct. Rep. 170. All that seems to have been decided in that case was that by calling the adverse parties the party calling them made them his own witnesses. It was said: “While the plaintiffs were not concluded by their evidence, and might show they were mistaken, it could not be properly contended by the plaintiffs that they were unworthy of credit. The-evidence must be given such weight as, under all the circumstances, it is fairly entitled to receive.” From the somewhat meager statement of the conditions presented by that case, it would seem to confine itself to the proposition that one calling a witness, even the adverse party, cannot impeach him. The party is in no wise concluded by it, and it must be given such weight as, under all circumstances, it is entitled to. No attempt was made-here to impeach the witnesses. The question was whether, under all the circumstances of the case, their statements aforesaid were to be believed. i In cases like this, it is generally necessary to call and examine-the parties to the alleged fraud, and because of their adverse interest they may be' treated as witnesses on cross-examination.. The object of the right of such cross-examination is to draw out of an unwilling witness all such circumstances as may tend to establish the perpetration of the fraud. And while the witness-cannot be impeached in the ordinary manner permitted in the case of witnesses called by the opposing party, his testimony goes to the jury, or the court if there be no jury, with such [weight as it may be entitled to under all of the circumstances. If a witness makes a direct statement, and then discloses cir [575] cumstances inconsistent therewith, it is for the jury or court to determine what is to be believed. The proper rule in such cases was declared by Mr. Justice Peckham of the Supreme Court of the United States, when a member of the court of appeals of New York, in the following language: “What favorable facts the party calling him obtained from such a witness may be justly regarded as wrung from a reluctant and unwilling man, while those which are unfavorable may be treated by the jury with just that degree of belief which they may think is deserved, considering their nature and the other circumstances of the case.” Becker v. Koch, 104 N. Y. 394, 401, 58 Am. Rep. 515, 10 N. E. 701. See also Cross v. Cross, 108 N. Y. 628, 15 N. E. 333; McLean v. Clark, 31 Fed. 501, 504; Emerson v. Wark, 185 Mass. 427, 429, 70 N. E. 482; Snell v. Gregory, 37 Mich. 500, 502; Garny v. Katz, 89 Wis. 230, 61 N. W. 762; Carney v. Hennessey, 77 Conn. 577, 586, 60 Atl. 129. Tested by this rule, we think the court, trying the case on the facts as well as the law, was not bound to believe the positive statements of the witnesses, in the light of all the circumstances disclosed. The decree will therefore be affirmed, with costs. Affirmed.