Lewis v. Rice

Campbell, C. J. This action of trover was begun by plaintiff to recover for the conversion of goods levied on by defendant while a part of plaintiff’s stock in trade, under an attachment against one Louis Simon, who, as well as plaintiff, did business in Edmore. The plaintiffs in attachment had sold goods to Simon, who had a considerable stock, for which he was more or less indebted. The goods seized from the store of plaintiff consisted of a lot of clothing sold toiler by Simon in one transaction, as claimed, and of other articles subsequently, but soon thereafter transferred. When the attachment was levied, defendant first seized Simon’s stock on hand, the exact value of which does not appear from the printed record, which was subject to a voluntary chattel — 102 — mortgage made to his brother, only claimed to be valid for a portion of its nominal amount. The goods held by plaintiff were taken thereafter on the same writ. In the present record the sufficiency of the first levy to protect the creditors’ claim, without recourse to plaintiff, was not, so far as we discover, made a governing question. The case was tried on the claim by defendant that the sales to plaintiff were void as against creditors. Simon himself was the principal witness relied on by defendant, and he testified that the clothing sale to plaintiff was made in good faith. As to the remainder he intimated that he had been cajoled into making it, against his own interests, but with no wrong intent on his own part. From the facts which he detailed, and other circumstances, defendant was allowed to claim fraud in all the parties, and the court charged the jury on that theory. They found for plaintiff on the facts, and defendant insists that the case was not given to them by the court as favorably as it should have been. The court opened the door very wide to admit testimony, not only of the acts, but also of the surroundings, of the parties. It is not within our province to form or express an opinion upon these facts. There were no such admitted facts as necessarily made the dealings fraudulent against creditors, and we can only disturb the verdict if given under erroneous rulings. The errors assigned are partly upon the rejection of testimony, and partly on the charges given, or on failures to charge. The first nine errors assigned all refer to refusals to admit testimony concerning the conduct of Mary Lewis, a daughter of plaintiff, who had been a saleswoman in the employ of Simon, and to whom defendant claimed he had paid attentions with a view to marriage. One of the errors assigned, was to the rejection by the court of the following question asked of a lady living in the neighborhood concerning Simon. Having said, in answer to a question, that Simon was in her house the day after the attachment was levied and the store closed upon it, she was further asked, “ What were his actions — 103 — and statements to yon that morning ?” This was ruled out, as not sufficiently bearing on previous consummated transactions. Apart from its apparent irrelevancy, it is certainly not" competent to allow previous transactions to be affected by the declarations of one of the parties to them, in derogation: of the rights of the other, after a controversy has arisen,, and when they can by no possibility be treated as parts of the transaction itself. It is the baldest kind of hearsay, as« well as open to the further difficulty that it would, in this case, have enabled Simon to make testimony inuring to Ilfs' own advantage in the settlement of his debts. There is no ground on which such testimony could be permitted. Very full liberty was given to show to the jury all the domestic relations between plaintiff and her husband and Simon. This was going as far as could properly be permitted, and it was allowed as throwing some light on the nature off their dealings. But we do not think the court erred in shutting out testimony concerning economy or extravagance of plaintiff’s daughter in dress and expenditure, as shown by-third persons. It could have no bearing on the nature or consideration of the purchases made by her parents of Simon. Error is alleged on the failure of the court to give certain-charges. The trial conrt is not required to give specific» charges in the exact form asked, if all that is proper and-pertinent is contained in the charge actually given ; and where-a charge requested assumes a certain state of facts as to beheld as existing, it should seldom be given at all, and never if there is any room for a different finding by the jury. The-third and fourth requests in regard to the effect of collusion» and conduct, and in regard to how fraud may be proved,, were given in the general charge, so far as proper, in a very-clear and intelligible way, and we do not see how the jury" could have been more fairly instructed. We think the sixth,, seventh, and eighth requests stand in the same way. The» charge is very explicit upon the whole question of fraud, and its effect on the bargain. It was also entirely correct on the bearing of the burden of proof. — 104 — The only thing suggested, on the argument, in the charge itself; which introduced what is supposed to be a different element from those in the requests, is in answer to a suggestion of plaintiffs counsel. The court in one charge left it in doubt whether goods could be lawfully sold except for cash down. On an inquiry whether a sale might not be made on time, the court held that a time sale might be good, with a valid promise to pay. We do not think the law prohibits honest sales of goods on credit merely because a merchant owes debts. A very largo share of business is necessarily done in that way, and it has never been supposed that the purchaser could be held responsible for a dishonest purpose of his vendor on that account. The statute in regard to frauds against creditors makes fraud in all cases a question of fact, and has laid dowm no rules showing presumptions of fraud from sales on credit. Such presumptions may arise from failure to change possession, and some express deviations from the ordinary course of business, but not from mere failure to pay cash down. A large majority of business sales would fail if any such rule prevailed. There must be fraud in fact. Although no request was made on the subject, and defendant tried the case chiefly on an issue of fraudulent conspiracy between plaintiff and Simon to cheat his creditors, yet error is assigned upon a part of the charge indicating that, although there may have been no design to cheat creditors, they can, nevertheless, in an action at law, undertake to redress frauds against their own debtor. And it is claimed that, if Simon was cheated by plaintiff, defendant may treat the sale as void. No authority appears to warrant any such conclusion. It is very well settled that an action for fraud is not assignable, and that fraud is only to be complained of by the party injured. The statute which allows creditors to treat certain dealings as absolutely void confines their redress to frauds aimed against creditors. We need not consider how far such frauds against a debtor might be reached in equity. But attachment proceedings against a debtor cannot be regarded — 105 — ás proceedings in his behalf, and an attaching creditor cannot assume to represent him. As the court in this case treated defendant as having a complete right to attack the dealings complained of, and went too far, under the testimony, in treating all the sales to plaintiff as governed by the same considerations, when Simon testified they were not, there was no ground for complaining that defendant was prejudiced, by the refusal to receive the later attachment proceedings, not mentioned in the notice attached to the plea. Every possible right which any creditor could have was accorded to defendant as representing creditors. If any wrong was done in this case, it was* not done by the court, but by the jury. It is not within our province to consider whether the jury were mistaken or not. The testimony was conflicting, and in some things peculiar. We cannot disturb their conclusions. o The judgment must be affirmed. Sherwood and Champlin, JJ\, concurred. Morse, J., did not sit.