S. E. Slade Lumber Co. v. Derby

The plaintiff, as a judgment creditor of the defendant, Oscoe E. Derby, brought this suit in equity to have declared void a transfer of 99 shares of the capital stock of the Derby Estate Company (a corporation), made by said Oscoe E. Derby to his wife, the defendant Mary L. Derby. As grounds for the relief asked the plaintiff alleged that said transfer was made without consideration, at a time when the defendant Oscoe was indebted to the plaintiff in a large amount, and to others; that the gift of the shares of stock in said corporation was made by said defendant Oscoe to his wife for the purpose of and with the intent to hinder and defraud his creditors and particularly this plaintiff, in contemplation of insolvency and while the said defendant was insolvent. The findings of the trial court were in accordance with the allegations of the complaint, and a decree was given and made declaring said transfer to be void as to the plaintiff creditor, and said 99 shares of the capital stock of the Derby Estate Company subject to the payment of the plaintiff’s judgment. The appeal is from the judgment and also from an order denying a motion for a new trial. For brevity, the defendant Oscoe E. Derby will be referred to as the defendant.

The principal point relied upon by appellants for a reversal is the claim made that the findings of the court are not supported by the evidence. The record is quite large, and it is

At the time of his death B. M. Derby was engaged in the lumber business with one G. H. Payne, and the business was conducted after his death by his family and said Payne, until December 13, 1891, at which time the B. M. Derby & Co. corporation was formed and all the property and assets connected with the lumber business transferred to it. The six hundred shares capital stock of the last-named corporation were issued to the following persons: two hundred shares to O. B. Derby; 201 shares to A. B. Derby; 197 shares- to George H. Payne; one share to Nancy M. Derby and one share to Lizzie D. Harmon, the stock having a par value of one hundred dollars per share and the capital stock being sixty thousand dollars. George H. Payne died at some date prior to January, 1909.

After the creation of the E. M. Derby & Co. corporation, it conducted a large lumber business in Alameda County. In the course of its business it bought much lumber from the plaintiff and from B. J. Dodge Co., a corporation. - The purchases from the plaintiff from January 25, 1907, to January 13, 1909, amounted to $96,196.02, and during-the same period payments were made from time to time which left a balance due the plaintiff on the last-named date of about seventy-two thousand dollars, and after that date lumber was sold by the plaintiff to said corporation -amounting to $10,689.09. The

On January 13, 1909, the defendant made a gift to his wife, the other defendant, of his 99 shares of the corporate stock of the Derby Estate Company, being the shares of stock involved in this litigation. The evidence shows it had a value of about twenty-five thousand dollars. Prior to that time, and on the sixteenth day of November, 1908, the defendant gave to plaintiff a written option by which he offered to transfer to plaintiff all his stock in the E. M. Derby & Co. corporation in consideration that plaintiff would assume all of his liabilities entailed by the stock—“The idea of the above proposition being that myself and brother will be willing to release all claims to our holdings iñ E. M. Derby & Co. if you will assume all liabilities thereof.” On May 24, 1909, the defendant transferred all his stock in the E. M. Derby & Go. to Miss G. Y. Rose, a stenographer in the office of his attorney. This transfer was made without consideration—a gift.

August 11, 1909, the E. M. Derby & Co. transferred all its real and personal property to J. F. Carlston and Oliver Ells-worth, in trust for its creditors. September 8, 1909, all the real estate of E. M. Derby & Co. and of the defendant was attached on claims held by Central Bank and Rogers, amounting to fifty-five thousand dollars, and sold under execution. The defendant, in addition to his stockholder’s liability in E. M. Derby & Co. had indorsed notes for said company amounting to fifty-five thousand dollars, and was individually liable thereon. He also owed his sister, Mrs. Harmon, twelve thousand dollars, secured by mortgage on certain real estate. He also owed one-third of an indebtedness of the E. M. Derby Co. to E. J. Dodge Co. of $10,770.40, his proportion thereof being $3,569.12. After the transfer of all of the assets of the E. M. Derby & Co. to J. F. Carlston and Oliver Ellsworth, trustees in trust for the creditors of the corporation made, as above stated, on August 11, 1909, the plaintiff received from said trustees different sums of money which were credited on the indebtedness of E. M. Derby & Co. to it. These payments, together with other money secured between January 13, 1909, and August 11, 1909, reduced the indebtedness of E. M. Derby & Go. to the plaintiff to $36,187.21. On April 13, 1910, the plaintiff brought an action against the defendant to recover, upon his stockholder’s liability, his proportion.of the above indebtedness, and, on July 29, 1910, secured a judgment therein against the defendant for the sum of $12,358.40. On May. 10, 1910, the plaintiff having obtained an assignment to it of the claim of E. J. Dodge Co. against E. M. Derby & Co., brought an action against the defendant to recover judgment against him for Ms proportion thereof as a stockholder, and, on July 29, 1910, recovered a judgment against Mm for $3,671.09. Upon these two judgments last mentioned the plaintiff brings this suit as a judgment creditor to set aside the transfer of the 99 shares of stock of E. M. Derby Estate Company by defendant to Ms wife. The figures here

The foregoing statement does not contain a recital of all the facts proved tending to support plaintiff’s case. In fairness to the defendant, it should be stated that on the trial he gave more or less plausible reasons and explanations for the various transfers of property made by him, but the trial judge was. at liberty not to accept them at their face value, and evidently did not.

We think this bare recital of the history of events, with the inferences that may legitimately and properly be drawn therefrom, show that the court had ample justification for its finding that the gift of the 99 shares of stock was made with intent to hinder and delay the creditors of defendant in collecting their debts. In fact, it is difficult to see what other conclusion could properly be reached.

The defendant owned one-third of the stock of a corporation engaged in the active business of buying and selling lumber. It was. losing money rapidly, the year before the stock was transferred to his wife having lost twenty thousand dollars, or one-third of the amount for which it was capitalized. The defendant was fully aware of the condition of the company. It was, as counsel express it, a “sinking ship,” and defendant fully realized and appreciated the situation— so much so that, in November, 1908, he offered, in connection with his brother, to transfer to the plaintiff all his stock in the corporation if plaintiff would assume all of his liabilities entailed by the stock. One witness testified that, in addition to the transfer of all his stock to get released from his stockholder's liability, the defendant and his brother also offered to transfer to plaintiff their personal real estate holdings, valued at thirty-eight thousand dollars. This was denied by defendant but, for aught we know, the court may have believed the witness. This conduct shows exactly what the defendant believed to be the condition of the company, and gives an insight, and a clear one, into his state of mind and desires. Not having made the suggested deal with the plaintiff, in January, 1909, he gave to his wife the stock in dispute. Next he deeded to his mother certain real estate without consideration, and next made a stenographer in the office of his attorney a present of all of his stock in the E. M. Derby & Co.; and all these things were being done when he was largely

We deem it unnecessary to go into a close mathematical calculation to figure out on a close margin whether the defendant at the time of the transfer might have had a small excess of assets above his liabilities. A solvent person may transfer property with intent to hinder his creditors, as well as one who is insolvent. “It is obvious, therefore, that the question upon which the case must turn is whether the conveyance is in fraud of the rights of the plaintiff as a creditor. This, under our statute, is a question of fact (Civ. Code, sec. 3442), that is to say, a question of intent.” (Knox v. Blanckenburg, 28 Cal. App. 301 , [ 152 Pac. 62 ].) It is not often that direct proof of fraud can be obtained. People do not in such eases proclaim their intent. It can only be inferred in most cases from all the attending facts, circumstances, and conditions and by ascribing to the conduct of people those motives which would ordinarily be the motives of others doing like things under like circumstances.

Appellant assigns as error the admission in evidence of judgment, writs, and execution in the suit brought by plaintiff to obtain the judgment, the foundation of the suit. To enable the plaintiff to maintain this suit it was necessary for him to show that he was a judgment creditor and that he had exhausted his legal remedies to obtain satisfaction of his judgment. Some other objections are raised as to the admission of testimony, but as most of them had a bearing upon the question of insolvency, they need not be further considered. In this class of cases a wide latitude is permissible. “In litigations of the class under consideration, great latitude should undoubtedly be allowed in regard to the admission of circumstantial evidence for the purpose of proving participation in manifest fraud. Objections to testimony as irrelevant are not favored in such cases, since the force of circumstances depends so much upon their number and connection. The evidence should be permitted to take a wide range, as in most eases fraud is predicated on circumstances, and not upon direct proof.” (Bush & Mallett Co. v. Helbing, 134 Cal. 676 , [ 66 Pac. 967 ].)

We are of the opinion that the finding of the court that said 99 shares of stock were transferred by the defendant to his wife in fraud of the rights of his creditors, and especially of

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 21, 1916.