Leedom v. Earls Furniture & Carpet Co.

Smith, J.: This is an action by the plaintiffs against the Earls Furniture & Carpet Company, a Utah corporation, and I. A. Benton, as United States marshal, for the recovery of certain goods sold to the defendant company during the summer and fall of 1892, alleging that when the defendant company purchased the goods it was insolvent, and purchased the goode with the intention at the time of the purchase not to pay for the same. The defendant I. A. Benton, United States marshal, who had taken the property under execution issued upon judgments by confession of the Earls Furniture & Carpet Company to John T. Ballard and J. A. Earls, filed his answer denying the allegation of fraud. This was the only question tried and [177] submitted to the jury. The jury returned a verdict against the defendants, and found that the plaintiffs were the owners and entitled to the possession of the property as described in the complaint, and also found that the value of said property was $781.63, and assessed the damage for its detention at $77.88. The points relied upon for a reversal by the appellants may be divided in two groups; and for the purposes of this decision the first and second points relied upon may be considered together, and the third, fourth, and fifth may also be considered together. Taking up the first of these, it is claimed that the court erred in permitting to be read to the jury the twenty-third and twenty-fourth interrogatories of the deposition of James W. Lynd on behalf of the plaintiffs, and in overruling the defendants’ objection thereto, and in permitting the answer to be read over the objection of the defendants thereto; the said interrogatories, the objections and answers thereto, being as follows: “Int. 23. Did the defendant company ever inform you that on the 10th day of June, at a special stockholders’ meeting, duly called for the purpose, it was resolved that the sixth article of the articles of association of the company was to be so amended as to read as follows: ‘Article 6. That the amount of the capital stock of said corporation shall be $25,000, which shall be divided into shares of the face or par value of $25 each;’ and that said resolution amending article 6 was duly filed with the secretary of the territory on June 14, 1892?” — to which interrogatory the defendants objected on the ground that the same was immaterial and' incompetent, which objection was overruled, and the answer thereto was read as follows, to wit: “ The defendant company did not inform us of the change in the articles of association as set forth in this interrogatory.” “ Int. 24. Did the defendant company ever inform [178] you that at all times between the 1st day of July, 1892, and the 1st day of December, 1892, that one Benjamin F. Earls was the owner of over nine hundred (900) shares of- the capital stock of said defendant corporation, and that said capital, stock, under the said amended articles of incorporation, was fully paid?” — to which the defendants objected as being incompetent and immaterial, which objection was overruled by the court, and the answer to said interrogatory was read as follows, to wit: “ The defendant company did not inform us of the matter related in this interrogatory.” The issue in this case was one of fraud in the purchase of the goods by the defendant corporation, the Earls Furniture & Carpet Company. The allegations of fraud are clearly sufficient to justify the introduction of the evidence complained of by the appellants. -This allegation of fraud in plaintiffs complaint is as follows: “That the defendant corporation was insolvent at the time of said pretended purchases, and when the defendant company obtained possession of said goods; and the fact of such insolvency was well known to the officers and agents of said defendant corporation when they made said pretended purchases and received said goods. That said pretended purchases were made with the preconceived intention on the part of the defendant company and its officers and agents not to pay for said goods, or any part thereof, by reason of said defendant’s insolvency and inability to meet its obligations, and for the purpose of cheating and defrauding this plaintiff of the purchase price of said goods. That the defendant corporation intentionally and fraudulently, and for the purpose of cheating and deceiving this plaintiff, and obtaining said goods without paying for the same, fraudulently suppressed and concealed from the plaintiff the fact that it was insolvent.” This allegation was denied in the [179] answer, and upon this issue the respondents in the court below propounded the twenty-third and twenty-fourth interrogatories in question, and the court below permitted them to be answered as one link in the great chain of •evidence tending to prove the fraud, that the defendants were insolvent at the time of the purchase of the goods, knew -this fact, and that there was a definite intent upon their part not to pay for the goods. TJpon this question, Mr. Eice, in his work on Evidence, says: “In all investigations of questions involved in fraud, the courts extend an exceptional liberality to the admission of evidence; and a broad interpretation is to be afforded on all rules of rel-cvancy.” 2 Rice, Ev. p. 953. See, also, Zerbe v. Miller, 16 Pa. St. 488; Hopkins v. Sievert, 58 Mo. 201; Stauffer v. Young, 39 Pa. St. 455; Smalley v. Hale, 37 Mo. 102. It was also said by Mr. Justice Strong in delivering an opinion in the Supreme Court of the United States in the case of Butter v. Watkins, 13 Wall. 456; “Actual fraud is always attended by an intent to defraud, and the intent may be shown by any evidence that has a tendency to persuade the mind of its existence. Hence, in actions for fraud, large latitude is always given to the admission of evidence.” See, also, Castle v. Bullard, 23 How. 172; Lincoln v. Claflin, 7 Wall. 132; 1 Starkie, Ev. 58. Therefore the issue joined upon the allegation of fraud in the complaint and the answer thereto made the said interrogatories and answers thereto clearly relevant. Under the issue of fraud this evidence was clearly admissible as one of the circumstances tending to establish the fraud. The third, fourth, and fifth points relied upon by the appellants for a reversal may be decided together, and were as follows: “That the court erred in instructing the jury that nine of their number might render a verdict, and in receiving as the verdict of the jury a verdict concurred in by only ten members of the jury; that the court [180] erred in rendering a judgment upon the verdict; and that the court erred in overruling the defendant’s motion for a new trial because the verdict was rendered by ten members of the jury, received by the court, and judgment entered thereon.” This question has been decided a number of times by this court that nine jurors could render a verdict in civil actions; that it was not an error for the court to receive such a verdict, and render judgment thereon. See Hess v. White, 9 Utah, 61, 33 Pac. 243; Publishing Co. v. Fisher, 10 Utah, 147, 37 Pac. 496. The judgment is affirmed. MekRITT, C. J., and King, J., concur.