Bristol v. Hull

Prior to July 1st, 1898, George Lambert, one of the original defendants, and whose administrator has been substituted pending the appeal to this court, recovered judgment against Millard F. Hoxon and Cornwall M. Uoxon, his father, in the Supreme Court for $1,079.49 damages and costs, and issued execution thereon to the sheriff of Essex county, who thereupon in the latter part of July, 1898, levied upon a stock of dry goods, which the plaintiff in this action alleged belonged to her and in which neither of the defendants had any interest.

The plaintiff having given the sheriff notice that he must not sell the goods levied upon, the latter called a jury for the purpose of determining the ownership of the property; the jury found title in the plaintiff and thereupon George Lambert executed and delivered to the sheriff a bond of indemnity, which was also executed by Orlando Kellogg and Charles ¡N". Williams, the other defendants herein, as sureties. Thereupon the sheriff continued in possession of the stock of goods, refusing to recognize the title of the plaintiff, thereby converting the property so far as plaintiff is concerned.

The foregoing is in substance the allegations of the complaint, which demands judgment for the sum of $4,800.00, with interest from August 15th, 1898.

The answer sets up in substance denial of plaintiff’s ownership and an allegation that the property was owned by Millard F. Noxon, or by him and his father, and was in the possession

A supplemental answer was afterwards served, alleging the sale of the property by the receiver in bankruptcy and that the proceeds amounted to $1,395.89, which was paid over to the plaintiff.

There were three principal issues tried under these pleadings: Whether the plaintiff was a bona fide owner of the property alleged to have been converted; whether in the bankruptcy proceedings the plaintiff waived her action against the sheriff for conversion; the amount of plaintiff’s damages.

The.trial judge refused to submit the first'two questions to the jury, allowing them to pass only upon the question of damages; that is, the value of the property at the time of the levy.

In the spring of 1895, Millard F. Uoxon, who had been in business in Elizabethtown, Essex county, sold to his father, Cornwall M. Hoxon, the stock of goods then owned by him for $8,250. In payment the father gave the son his note for $2,000 and assumed other notes owing by the son, and upon which the father was indorser, amounting to $6,250.00. Among these notes so assumed was the one for $1,000.00 held by the defendant George Lambert, and which was put into judgment as above stated, and resulted in the levy, the validity

Millard F. Hoxon, the son, testified in regard to this sale to his father, that. the goods remained from the first day of April, 1895, until the following January at Elizabethtown, and that they were then shipped to Broadalbin, Fulton county, or a part of them ; that his father took them there; that the witness had very little to do with transporting them; that he had something to do with it; that he assisted in packing same and that he was there at Elizabethtown for the purpose; that they were at Broadalbin in the neighborhood of six or seven months and then went to Ballston Spa; that a portion of the goods sold to his father were sent to Broadalbin and to Balls-ton ; that he helped with the inventory and in packing and unpacking the goods; that he did not have possession of the goods at Broadalbin; that he was in the store a part of the time and attended to customers and waited on same; that he could not tell what portion of the six months he was there, perhaps all told two months out of the six.

In June, 1896, Cornwall M. Hoxon sold what remained of this stock of goods to Alice J. Hoxon, the wife of Millard F. Hoxon. The consideration of this transfer was about $4,000.00, and she paid it by taking up the two notes, one of $2,000.00 and one of $1,640.00, which the plaintiff, Mrs. Bristol, held against Cornwall M. Hoxon, and surrendered them to her, she giving the plaintiff, Mrs. Bristol, her own note-therefor. For

Soon after the transfer of the stock to Alice J. Noxon, it was taken to Ballston, Saratoga county, by her, and she ran the business, her husband, Millard F. Noxon, acting as her agent. This continued until about the first of October, 1897, when the goods were shipped to Elizabethtown, Essex county, and Mrs. Noxon then sold a half interest in the stock to her daughter, Mrs. Deming. The value of the stock at that time was about $3,500.00. Mrs. Deming paid-$300.00 in cash, and the firm note of Noxon & Deming for $2,000.00 was given to Mrs. Noxon for the balance. Noxon & Deming ran the business until about the first of March, 1898.

In 1897, Mrs. Bristol, the plaintiff, employed an attorney of Ballston, who married her granddaughter, to protect her interests. The plaintiff, in March, 1898, was the owner of a note for $2,000.00 of the firm of Noxon & Deming, which was given to Mrs. Noxon, she having transferred the same to the plaintiff to apply on Mrs. Noxon’s note for $3,774.47 held by the plaintiff. At that time the plaintiff owned the two notes of $3,800.00 and' $200.00 given by Millard F. Noxon. On the one for $3,800.00 were indorsed the payments of $2,000.00 and $1,640.00 made by the notes of Cornwall M. Noxon as above stated. The plaintiff also owned the note of Alice J. Noxon for $3,774.47, which Mrs. Noxon had given to her to take up the notes of Cornwall M. Noxon, which she surrendered to him in part payment of the transfer from him to her on which had been indorsed the $2,000.00 note of Noxon & Deming.

The attorney for the plaintiff, on the first day of March, 1898, consummated a sale from Noxon & Deming.to the plaintiff of the stock of goods then owned by them' in Elizabethtown. The consideration of that conveyance was $2,750.00, of which $692.00 was a covenant to pay the debts of Noxon & Deming, then'outstanding, and $2,000.00 by surrendering the nóte of Noxon & Deming, which Mrs. Bristol, the plaintiff, had received,on account of the note for $3,774.47

The sheriff’s appraisers fixed the value of the goods levied upon at about $4,800.00.

On the 12th of August, 1898, Millard F. iSToxon filed his petition in bankruptcy, a receiver was appointed who, on the ground the property was perishable, sold the goods that were in the sheriff’s hands by virtue of the levy under executions in this and two other actions. It was admitted at- the trial that “ the plaintiff received $1,395.89 on account of the value of the goods.”

At the close of the evidence the judge charged the jury in substance that under the facts as proved the plaintiff had established her title to tlie property, and that he so held as matter of law.

The court also charged that the only question for the jury to determine was the value of the property at the time of conversion, which amount plaintiff was entitled to recover with interest, less the sum of $1,395.89 received in “ some proceedings had in court.” The jury found a verdict of $3,000.00 for the plaintiff, and the Appellate Division affirmed the judgment entered thereon, writing no opinion.

The two principal points urged upon our attention are:

As to the first point the facts are somewhat complicated regarding the various transfers of the property, and we have, therefore, stated them with considerable detail. There are several reasons why the trial court should have submitted to the jury the question of plaintiff’s title to the property, growing out of the peculiar state of facts disclosed. The first transfer of the property was from the son to the father; the second from the father to the son’s wife; the third from the son’s wife and her partner, Mrs. Doming, who is her daughter, to the plaintiff, who is the mother of one and the grandmother of the other. It appears that in adjusting the payments for this property in the various transfers the transactions were largely on paper and a very small amount of money changed hands; that the stock of goods in question was, in the time covered by these transfers, shipped from Elizabethtown, Essex county, to Broadalbin, Fulton county, thence to Ballston Spa, Saratoga county, and ultimately returned to Elizabethtown. °

It also appears that during the greater part of this time Millard F. .Noxon was in -charge of the stores where this property was offered for sale, either as an alleged agent or clerk.

There are other facts that rendered this a case for the jury, only one of which we will mention. Millard F. Moxon testified that of the goods that were in the store at the time his wife took title from his father, there were not to exceed three hundred dollars in value remaining on hand when the sheriff levied; his cross-examination on this point and in regard to other matters justifies the claim of the defendants’ counsel that the case should have been submitted to the jury.

In referring to these salient facts in the case, we do not wish to be understood as intimating that they are necessarily incon

Transactions between relatives- are subjected to rigid scrutiny. (Hoboken Bank for Savings v. Beckman, 36 N. J. Equity, 83; Clinton Bank v. Cummins, 38 N. J. Equity, 191; Scofield v. Spaulding, 54 Hun, 523 ; Morris v. Morris, 71 Hun, 45 ; First National Bank v. Moffatt, 77 Hun, 468 ; Nichols v. Morrow, 34 N. Y. S. R. 495.)

We will now consider the second point as to the effect in law of plaintiff’s accepting the proceeds of the sale of the goods in the bankruptcy proceedings.

These proceedings are invoked by both parties, the counsel for plaintiff and respondent insisting that, as between the plaintiff and Millard F. Yoxon, it has been determined-therein that the plaintiff was the owner of the goods in question and that this adjudication is conclusive on the parties to this action.

In the present state of the record the question sought to be raised by the plaintiff’s counsel is not here. He offered in evidence various orders and proceedings in bankruptcy which would have established the adjudication that the plaintiff in this action owned the property in question, if that court had jurisdiction to so decide, but the trial judge refused to receive them on the ground that the referee in bankruptcy had no jurisdiction to adjudicate as to the title of the property, he having power only to determine whether it belonged among the assets of the alleged bankrupt or not.

The respondent’s exceptions are not presented by this appeal, but her counsel, on the argument, asked that we receive the rejected documentary evidence for the purpose of

The counsel for the appellants contends that by accepting the proceeds of the sale in bankruptcy, the plaintiff has waived her claim against the sheriff, and that this action must fail.

As this case must go back for a new trial, and as the record is incomplete as to all that occurred in the bankruptcy proceedings, we do not feel justified in passing upon this question at the present time.

We are. also of opinion that the trial judge erred in refusing to allow the receiver in bankruptcy, who was sworn for defendants, and had testified as to what took place before the district judge in Buffalo when a receiver was appointed in the bankruptcy proceedings, to answer the question, “ State what further was said and done.” The defendants sought to show that the plaintiff’s counsel assented to the appointment of the receiver.

The plaintiff’s counsel had previously taken the stand for plaintiff and testified in substance that the court having announced its determination to appoint a receiver, he merely assented to the form of the order. He was asked, “ Did you agree to anything else? ” and was allowed to answer that he did not, over the objection and .exception of defendants.

The defendants were entitled to follow up this line of inquiry opened by the plaintiff. Defendants’ counsel spread upon the record his offer to show that plaintiff’s counsel assented to the appointment of the receiver and to the sale by him. The court refused to allow this line of proof and defendants excepted. The precise relations of the plaintiff to the bankruptcy proceedings are an important element in this aspect of the casé.

The judgments of the Special Term and the Appellate Division should be reversed and a new trial granted, with costs to abide the event.

Parker, Ch. J, Haight, Martin, Vann and Cullen, JJ, concur ; Landon, J, not sitting.

Judgments reversed, etc.