Montgomery-Moore Manufacturing Co. v. Leith

SIMPSON, J. The judgment in this case was rendered on September 23, 1907, and the appeal was taken August 28, 1908. A motion is made to dismiss the appeal because section 2868 of the Code of 1907, which went into effect on May 1, 1908, provides that appeals shall be taken within six months from the rendition of the judgment or decree. We hold that section 10 of the Code of 1907 preserves the right of appeal for the one year provided by section 436 of the Code of 1896. Said section 10 provides that: “This Code shall not affect any existing right, remedy or defense, * * * as to all such cases the laws in force at the adoption of this Code shall continue in force.” — Poull Co. v. Foy-Hays Const. Co., 159 Ala. 453, 48 South. 785. The motion to dismiss the appeal is •overruled. This action is a trial of the right of property. The appellant, as plaintiff, sued out a writ of attachment against P. S. McCutchen & Son, levying the same on a stock of merchandise and other personal property which liad belonged to the defendant, but which, at the time of the levy, were in the possession of appellee’s agent, being removed from Baileyton, Ala., where defendant had been doing business, to Cullman, Ala., where said — 254 — appellee was doing business. Appellee thereupon interposed his' claim to the property, executed bond, and took possession of the property. The insistence of plaintiff is that said McCutchen & Son were in failing circumstances, which was known to the claimant, that the stock of goods was bought for an amount greatly less than its real value, and that said sale was fraudulent and void as to the creditors of said McCutchen & Son; the plaintiff being one of said creditors. The plaintiff took the deposition of P. S. McCutchen, and the seventh interrogatory to said witness was: “Do you think it is wrong for a man to buy goods from a wholesale merchant, and then sell them with the purpose and intention of not paying for them, and then put the money in his pockets, without paying for them?” The witness, for answer to this inteiTogatory, said: “I never bought the goods with such intention. I never bought them with that intention.” Before offering any part of the deposition, .the plaintiff objected to this answer as not being ¡responsive to his interrogatory, and moved to expunge it from the deposition, which motion was overruled, and the answer was read to the jury. As no objection was offered to the interrogatory, and the answer was not responsive to the interrogatory, it should have been excluded. The eighth interrogatory to said witness asked, “What was the indebtedness of the defendants P. S. McCutchen & Son, on the 8th day of January, 1907?” and the answer was, “I suppose we owed something like from $1,200 to $1,400.” The claimant moved to exclude said answer, and the court sustained the motion and exjranged said answer from the deposition. This was error. This was not a “mere supposition or guess,” but was a statement of the witness’s best recollection of the amount of indebtedness, not having the books be — 255 — fore him, and this is particularly true, as the witness went on to state the several amounts which they owed to various creditors. The tenth interrogatory is not set out in full; but the court, on motion of the claimant, excluded from the jury the answer to a part of it, to wit: “I asked them when they drove up if Leeth was coming, and they said he was not.” This was immaterial and could not affect the case one way or the other. H'ence there was no reversible error in excluding it. There was no error in sustaining the objection to the question to the witness Whaley (referring to Mr. Leeth, as he was taking the goods into his store), “Did he appear to be mad?” as it was leading, and it was not material to the issue. The' court erred in sustaining the objection to- the question to the witness Whaley, as to whether he heard Adams say anything about the ownership of the goods. It was proved and not denied that Adams was the agent of Leeth, charged with the duty of going to the defendants, buying the goods and, bringing them to Leith’s store, and he was then in the act of bringing them. His declarations as to the ownership of the goods were com petent. There was no error in overruling the objection to the question to the witness Leeth (claimant), “What per cent. of. the invoice price would the stock of goods be worth, in the condition it was when you purchased it?” The witness had just stated that the invoice had been made at wholesale cost, and he had agreed to take the goods at that, and the invoice was, immediately thereafter, introduced. The question to the witness Leeth (the claimant) as to how much goods he was carrying at-the time may have been relevant as to the bona fides of the transaction, and should be allowed on another trial. — 256 — The objections to the questions to the witnesses Kinney and Vandiver, as to what a remnant stock of goods would be worth, should have been sustained, as there was no proof that the stock purchased was a remnant stock. There was no error in overruling the objections to the questions to the witnesses Adams and Drake as to the value of the cattle, as it required no expert knowledge to answer said questions. There was no error in overruling the objection to the question to the witness Vandiver as to how much the goods were reduced in value by the manner in which they were moved from Baileyton to Cullman. The plaintiff had introduced evidence tending to show that the goods were worth $1,400 or $1,500 at Baileyton, and the witness Copeland had testified that he had invoiced the goods after they were in Leeth’s store in Cullman, that they were in bad condition, etc., and worth only $630, also that if they were in good condition at Bailey-ton they would be worth $1,200. Hence it was proper to show how much they were reduced in value by the move, so as to throw light on the real value of the goods before they left Baileyton. The matter of permitting leading questions is largely in the discretion of the trial court. Referring to the question by claimant to the witness Adams: “Did Mr. McCutchen tell you that he was selling his goods too cheap, and that he was thinking of backing out, and that it was wrong to beat his creditors that way”— there was no motion to exclude the answer, and it was a mere negative. There was no error in overruling the objection to the question. As to the question, to the witness Allgood, as to what occurred at the time the levy was made, while the court was not informed as to what additional facts were — 257 — expected to be brought out, yet we remark, for the guidance of the court in another trial, that the plaintiff is entitled to the benefit of proof, of all that was said and done at the time of the levy, as a part of the res gestas Charge 1 requested by the plaintiff was properly refused, as being abstract. There was no evidence that the expression therein recited was used. One witness was asked if that expression was used, and replied that he could not say that that was said, but that something like that was said. Another witness denied it. Charge 2 requested by the plaintiff was an invasion of the province of the jury, and properly refused. Charge 3 was properly refused. There was no evidence tending to show that Leeth had access to the books of McCutchen & Son before or at the time of making the purchase. There was no error in refusing charge 4 requested by the plaintiff, as it was singling out a portion of the evidence and requiring a separate finding on that fact. Charge 6 requested by the plaintiff was properly refused. It assumed the fraudulent intent of McCutchen & Son, which was a matter for the jury to find. Charge 8, should have been given. — Teague, Barnett & Co. v. Bass, 131 Ala. 423, 427, 31 South. 4; Carter v. O’Bryan Bros., 105 Ala. 305, 316, 16 South. 894; Smith v. Collins & Griffith, 94 Ala. 394, 399, 404, 10 South 334; Carter Bros. & Co. v. Coleman, 82 Ala. 178, 182, 2 South. 354; Jordan v. Rice, 151 Ala. 523, 44 South. 93, 94. There was no error in the refusal of the court to give charge 7 requested by the plaintiff. While it is true that there is evidence tending to show the fraudulent character of the sale on the part of McCutchen & Son, and it is also true that if McCutchen told Leeth, — 258 — before he paid for the property, that McCutchen & Son owed debts which they could not pay, this would be sufficient to put Leeth on inquiry, yet it is not proper to single out this item of evidence from all the others, and instruct the jury to find for the plaintiff, on that alone. While charge 1, given at.the request of the claimant, may have been misleading, yet it does not contain such error as to be reversible. The court erred in giving charge 2 at the request of the claimant. The rule is that: “If made upon a valuable consideration, the attacking creditor must go further and show notice to the grantee of the existence of other debts, or circumstances sufficient to elicit inquvry (italics ours), and which, if followed up, would lead to knowledge of their existence. When this is shown, then the burden is upon the grantee to show an adequate consideration — one reasonably equivalent to the value' of the goods.” And even the payment of an adequate consideration would not render the purchase valid, if the purchaser had notice of the insolvent condition or fraudulent intent of the vendor. — Chipman v. Glennon, 98 Ala. 263, 265, 13 South. 822, 823; Smith v. Collins & Griffith, 94 Ala. 394, 403 10 South. 334. While the court could not be required to give such a charge as charge 3, yet it is in accordance with the evidence, and the court cannot be put in error for giving it. Charge 1 given at the request of the claimant is erroneous in requiring too high a degree of proof in order to satisfy the jury. Charge 5 given at the request of the claimant is erroneous, in that it predicates the invalidity of the deed entirely on the insolvency of the. defendants, and knowl — 259 — edge thereof; whereas * one who is entirely solvent may be guilty of a fraudulent intent in converting his property into money for the purpose of putting it beyond the reach of his creditors. — Teague, Barnett & Co. v. Bass, 131 Ala. 427, 31 South. 4. Charge 6 is subject to the same criticism, in that it.makes the deed valid if the claimant had no notice of the insolvency of defendants, although he might have had notice of their fraudulent intent. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and Denson and Mayfield, JJ., concur.