The Prentiss Tool & Supply Co., Resp’t, v. Frank G. Schirmer, Sheriff, App’lt.{Supreme Court, General Term,, Second Department,A mere charge of fraud does not create a question for the jury; to do sc there must be legal evidence, and whether there is such evidence, and it is of sufficient weight to sustain a verdict, is a question, for the court.
3. Bill op sale—Chattel mortuaob.
A bill of sale of goods in payment of a previous indebtedness which exceeded the value of the goods cannot be converted into a chattel mortgage by admissions drawn out by counsel by leading questions that it was received as “security for a debt.”
Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial
Action to recover for the conversion of goods levied on as the property of one Cora E. Florence under an attachment in favor of one Donnelly. Some of the property so seized was claimed by plaintiff under a bill of sale from said Florence, and some under conditional sales to her. Defendant claimed that such bill of sale and conditional agreements were made in pursuance of a conspiracy to defraud Donnelly.
Ralph R. Prime, for app’lt; John M. Perry, for resp’t.
There was no error of law committed upon the trial.
It does not follow that because one party makes a charge of fraud against another there must be a question for a jury. Fraud is a question of fact, but to go before the jury there must be legal evidence and whether such evidence exists and if it does whether of sufficient weight to sustain a verdict is a question for the court.
The court below properly refused to submit the question to the jury.
There is no foundation for the claim that the instrument was a mortgage. The goods were sold to pay a precedent debt, and it was not difficult for counsel by putting the words into the mouth of the witness to get him to say he received them as “ security for a debt.”
There was no possibility of a surplus. The transaction was a .sale and not a mortgage.
Judgment affirmed, with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.