Majority
p. 42JOSEPH COHEN, Plaintiff and Respondent, v. JOHN KELLY, Sheriff, Defendant and Appellant. Before Monell, Curtis, and Sedgwick, JJ. Decided June 29, 1872.
Headnote
I. Charge.—Refusal to, whe$t error.—Trial.1. Action to recover damages for an alleged wrongful seizure under attachment.—Defence, fraudulent sale and transfer to plaintiff.
1. A refusal to charge “ that if the object and purpose of the transfer by the parties to it was to hinder, delay, or defraud the creditors of the transferror, the transfer was void, and the plaintiff cannot recover,” and a refusal to charge that “if the purpose and object of the parties in the transfer to the plaintiff was to hinder, delay, or defraud the other creditors of the transferror, then the fact that there may home been an indebtedness to the plaintiff, and a payment of money by him on account of the purchase, will not enable the plaintiff to hold the goods as against the sheriff acting under attachments,” constitute error if there is sufficient evidence to justify the jury in finding that the intent of the parties to the transfer was to hinder, delay, or defraud the creditors of the transferror, or the creditors other than the plaintiff.
a. Charging the jury that if the plaintiff was the owner of the goods at the time the levy was made, or if the goods had prior to that time been sold to plaintiff, he would be entitled to a verdict, to which charge exceptions were taken, will not cure the error, although the general bearing of the charge is to submit to the jury the question as to whether there had been a boná-jide sale to the plaintiff, and as to whether he was the bond-fide owner.
Appeal from judgment and order denying a motion for a new trial.
On the 7th of December, 1866, the plaintiff sued to recover damages for the taking and conversion of seven cases of merchandise, of the alleged value of $14,000. The respondent put in issue the title and the value, and justified under two warrants of attachment against the
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property of Lewis Piser, one issued in November, and the other in October previous. The plaintiff claimed to havé purchased the property of Lewis Piser, at Columbia, S. C., November 10 and 12, 1866. The goods were sent to New York, and levied upon by the defendant, as the property of Lewis Piser, under the two warrants of attachment. The defendant claims that the alleged sale by Lewis Piser to the plaintiff was fraudulent and void as against Lewis Piser’s creditors, and that no title passed to the plaintiff.
The evidence showed that in October, 1866, Lewis Piser, who dealt in dry goods at Columbia, S. C., came to New York and bough a large amount of goods of these attaching .creditors and other merchants. That October 30,1866, he confessed a judgment in New York to the plaintiff, who was his brother-in-law, for $16,273, and then returned to Columbia.
The plaintiff also went to Columbia, and November 8, 1866, Lewis Piser confessed a judgment to him for $16,306.13, in South Carolina. November 10 and 12 • following, the goods in question were delivered to the plaintiff, and sent back to New York. The plaintiff also arranged to have the net proceeds of the sales in Lewis Piser’s store paid to him, and the South Carolina execution was endorsed “wait orders.” Under it, in June, 1866, a levy was made, and Lewis Piser’s remaining stock sold.
There was evidence that Lewis Piser paid the freight and insurance on the shipments of the goods back to New York, and that they were sent for at his store at an unusnal hour of the morning, and also other testimony bearing upon the question of bad faith towards his creditors.
Evidence was offered on the trial to show that Lewis Piser obtained the goods from the attaching creditors, in October, 1866, by false and fraudulent representations, which was excluded, and the defendant excepted.
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The judge charged the jury as follows :
“ If you find from the evidence that the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, he will be entitled to your verdict ; the amount of the verdict I will speak of hereafter.
“In considering the question as to his ownership at that time, look at all the circumstances as detailed by him; he is the principal witness for himself; he says that some time in 1864 he had $8,00.0 in money by him, which he was desirous of investing; that he spoke with a young lawyer, who was on the stand here, and advised with him as to whether it was best to buy real estate ; that at the same time he had an application from his relative, Mr. Piser, for the loan of this same $8,000 ; he says Mr. Piser had lost money (I am not sure whether he said he was absolutely insolvent, but he had lost money); that he was out of business, but wanted to go into business, and for that purpose required this $8,000; the plaintiff says that after consulting this young lawyer, he lent the $8,000 to Mr. Piser; see whether that- is probable under the circumstances ; you have a right to consider that in connection with all the testimony of the witness.
‘1 The plaintiff had before that time been engaged in the business of selling goods of a description like a portion of these in suit, but was then, or about that time, engaged in another kind of business—the business of an optician ; after the loan of that money, he continued in that new business, and continued to peddle thro'ugh the Southern country with a stock of some $2,000, and accumulated, as he says, more money. In the summer of 1866, he was in South Carolina, as he says, and was told by Mr. Piser that he had not made much money ; that he had not made (if I remember right) anything ; that he had no means to pay him anything, but that he wanted another loan of $7,000. He says he made him the further loan of $7,000 on that statement.
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‘ ‘ Two or three months afterwards, in October, 1866, the plaintiff and Mr. Piser met again in Few York; the plaintiff wanted his money ; Mr. Piser could not pay it, and it was then agreed that judgment should be taken for the amount, and a judgment was taken here for the alleged loan of $15,000, with interest. A short time after that, the plaintiff went to Columbia, S. C., and there required. the payment of this judgment; Mr. Piser was unable to pay it; and the plaintiff states that thereupon he purchased from Mr. Piser goods to the amount of $10,500 to apply upon the debt, with the exception of $800, which he says was advanced to Piser in cash at that time. It is in evidence that they were the same goods that were sold by the sheriff; they were sent on here ; he sent on three boxes at that time, and shortly after the other three were sent.
“How see, taking all his evidence into consideration, whether that story is probable, whether it is true. Would such a man lend to a relative by marriage, whom he had not known but a short time, as he states, and who was poor, $8,000 without security, for the purpose of going into trade? Would he be likely to lend him $7,000 more, when he was satisfied from the statement of the borrower that he was not making money in his business. Without any additional inducement, would he be likely to take the goods instead of taking some other course to get his money in South Carolina ? Consider that. Fow there is a maxim in the law, 1 Falsus in uno, falsus in omnibus’ If a witness upon the stand tells a manifest falsehood in regard to material matter, the jury have a right to assume that he lies in everything. There are some statements of the plaintiff as a witness, which you have a right to consider. For instance, he stated upon the stand, that when he took the first goods to the express office, he insured them for one-half their value ; that is, he valued them to the express company, for insurance, at half their value; they
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were valued in the receipts at $3,00.0 ; the statement of the plaintiff himself, and the bills, show that the goods were really valued at $2,700 only, less than the amount at which they were insured. Consider that. There are other statements of his which I will not comment upon. If you come to the conclusion that his statements are not to be relied upon, you will find for the defendant.
“You have, in relation to the loaning of the $8,000, the testimony of this young lawyer, which I have no doubt is wholly true so far as he knows and states. He says he was present, and saw the $8,000 loaned ; that he wrote the note himself and saw it executed—saw all the transactions. All that may be ; yet it may not have been a loan at all. He saw certain things done, he saw money handed over, and saw the note given. He could not know what was in the hearts of the parties. If you disbelieve the plaintiff himself wholly, you are at liberty to disbelieve that there was any loan.
“ So in regard to the next transa ction, the loan of $7,000 in South Carolina, that rests upon the testimony of the plaintiff himself, supported by corroborative testimony of other men, who state what they saw done. If you do not believe the plaintiff* you may assume with perfect propriety that the witnesses simply intended to state, 'as they undoubtedly did, that they saw certain things done. One, of them states that he saw $4,000 paid over, and a draft for $3,000 more delivered. These are transactions which do not of themselves absolutely prove that there was a loan then made. I mean to say that if you disbelieve the testimony of the plaintiff, you are at liberty to believe that there was no loan absolutely made at that time. It is a matter of common-sense and judgment, no mystery of law about it.
“ Again, in regard to the sale of the goods, what I have already said applies there. The main or principal witness is the plaintiff himself. Other witnesses state the details of the transaction, the facts that they saw. But if
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you do not credit the statement of the plaintiff, you may also disbelieve that there was an absolute sale. You may believe it to be a simulated sale, a mere formal transaction, not legally transferring the goods. If you find that these goods were sold to the plaintiff at that • time, he will be entitled to your verdict.
“You are to determine, in the first place,- whether the alleged sale to the plaintiff was made or not; and, in the second place, in regard to the value, the testimony is with you.”
• The court was asked in due time by defendant’s counsel to charge the jury.
1st. If the object and purpose of the transfer by the parties to it was to hinder or delay or defraud the creditors of Lewis Piser, that transfer was void, and the plaintiff cannot recover.
The court refused so to charge, and the exception was noted.
2d. If the purpose and object of the parties in the transfer to the plaintiff was to hinder or delay or defraud the other creditors of Lewis Piser, then the fact that there may have been an indebtedness to the plaintiff, and a payment of money by him on account of the purchase, will not enable the plaintiff to hold the goods as against the defendant in the case acting under the attachments.
The court refused so to charge ; to which refusal an exception was noted.
The counsel for the defendant excepted to that portion of the charge in which it is stated “that if the jury find from the evidence that the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, he will be entitled to your verdict.”
The counsel also excepted to that portion of the charge in which the .court instructed the jury that if they found that these goods were sold to the plaintiff at that time, he will be entitled to your verdict.
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There was a verdict for the plaintiff of $7,000, on which judgment was entered. A motion was made for a new trial, which was denied.
Defendant appealed from this judgment and this order denying this motion for a new trial.
A. J. Vanderpoel, for appellant,
urged: First Point. The court erred in refusing to submit to the jury the question whether the transaction between the plaintiff and the debtor, Piser, was made with intent to hinder, delay, or defraud the creditors of Piser.
1. The propositions were correct in form and substance, if there was any evidence, or any evidence of circumstances from which an intent to hinder or delay creditors could be inferred.
The propositions not only involved the intent of the seller, but of the purchaser in the transaction.
2. Surely no proposition can be more elementary than that if two parties enter upon a contract of sale and purchase of property, with the intention of defrauding the creditors of the vendor, the transaction cannot stand.
3. The purpose being iniquitous, the corrupt motive being present, the circumstance of its being for a valuable consideration, or for a full consideration, or that the parties resorted to the machinery of a judgment, and a levy by a sheriff, or maintained the forms of law, will not avail the fraudulent purchaser as against the vendor’s creditors (Beals v. Guernsey, 8 Johns. 446 ; Metropolitan Bank v. Durant, 22 New Jer. Eq. 35; Doughton v. Gray, 2 Stoclcton, 323 ; Cowper, 434 ; Hartshorn v. Earnes, 31 Maine, 95; Kirtland v. Snow, 20 Conn. 27 ; Ashmead v. Hean, 13 Penn. 587 ; 7 B. Mon. 365 ).
The evidence established facts and circumstances which strongly supported the defendant’s theory that the sale was a scheme or device between two brothers-
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in-law to cover up the property of one of them from his creditors.
Second Point. The court treated the whole transaction as though confined in its effects to the plaintiff and Piser, and on the trial, and in charging the jury, ignored entirely the question of the intent with which they acted.
By refusing to charge as requested, the court, in effect, instructed the jury that the validity of the sale did not depend upon the intent with which it was made by the parties thereto.
The court had charged the jury that if “ the plaintiff “ was the owner of the goods in question at the time the “levy was made by the sheriff, he was entitled to a “verdict.” In commenting upon the evidence of ownership, the court confined itself to the question of indebtedness, leaving the impression that if Piser was owing the plaintiff, the sale was valid. The refusal to charge the second request confirmed this impression.
John H. Anthon, of counsel for respondent,
urged: If goods are sold and delivered, a complete title is vested. The question with what intent the goods aré delivered is for the jury, and the burden of proof is on the vendor, and the bona-flde purchaser from the vendee gets a perfect title (Smith v. Lynes, 5 N. Y. 41 ; Lacke v. Rhoades, 45 Barb. 499 ; Anderson v. Roberts, 18 Johns. 515 ; McCarty v. Vickery, 12 Id. 348; Farsett v. Smith, 23 N. Y. 252 ; Paddon v. Taylor, 44 N. Y. 371 ).
When transactions in another State come before the court for consideration, in the absence of evidence as to what is the law in the State where they occurred, the court will assume that the law affecting them is the same in the State where they occurred, as it would be had they occurred in this State.
Consequently we must assume that the law touching this alleged sale to the plaintiff, by Lewis Piser, in Co
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lumbia, S. C., is the same as our own law would be in respect to a similar transaction here. If the sale was made in Columbia with a fraudulent purpose as to the creditors, the same rules are to be applied to its consideration that would govern here.
When we consider the relationship, and the intimacy between Piser and the plaintiff; the order of the transactions and their dates ; the confession of the judgment to the plaintiff in Hew York, October 30th, just as he had completed his purchase in Hew York ; the confession of the judgment in Columbia to the plaintiff, Hovember 8, just as the goods had fairly arrived there ; .the alleged sale of them to the plaintiff, Hovember 10 and 12 ; the removal of them, at Piser’s request, at an unusual hour in the morning from Piser’s store, Piser paying the freight and insurance back to Hew York; the inadequacy of price paid for them by plaintiff; the variance between plaintiff’s statements and the express receipt; the concealment of three of the cases in Bayard Street on their arrival here; it is impossible to say that the plaintiff’s case is not one where the jury might have reasonably arrive at the conclusion that the sale was made with intent to defraud creditors, that the plaintiff had knowledge of it, and that no title passed to him by the sale.
The charge seems to indicate that the learned judge believed the alleged sale never had been made as stated. He instructs the jury that if the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, that if they found the goods were sold to him at that time, he was entitled to their verdict. But he refused to charge that, if the object and purpose of this transfer by the parties to it was to hinder or delay or defraud the creditors of Lewis Piser, the transfer was void, and the plaintiff could not recover. He also refused to charge that if the purpose and object of the parties in the transfer to the plaintiff was to hinder or
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delay or defraud the other creditors of Lewis Piser, then the fact that there may have been an indebtedness to the plaintiff, as a payment of money by him on account of the purchase, would not enable the plaintiff to hold the goods as against the defendant in this case acting under the attachments.
It is quite possible the jury may have been misled, by the refusal of the learned judge so to charge, under the circumstances of the case, and supposed that his refusal so to charge was in effect an instruction to them to the contrary.
If they have been misled, it is but just to the defendant that there should be a new trial.
I think the judgment and order appealed from should be reversed, and a new trial granted, with costs to defendant to abide the event.
Cases cited
- Beals v. Guernsey 8 Johns. 446 p. 48
- Smith v. Lynes 5 N. Y. 41 p. 49
- Lacker v. Rhoades 45 Barb. 499 p. 49
- Anderson v. Roberts 18 Johns. 515 p. 49
- Paddon v. Taylor 44 N. Y. 371 p. 49