Allen v. Kirk

• Decision Date: 24 January 1891
• Parties: ALLEN v. KIRK.
• Court: Iowa Supreme Court

81 Iowa 658

47 N.W. 906

ALLEN

v.KIRK.

Supreme Court of Iowa.

Jan. 24, 1891.

Appeal from district court, Cerro Gordo county; JOHN C. SHERWIN, Judge.

Action to recover for the wrongful taking and conversion of a stock of merchandise belonging to plaintiff, under writs of attachment in the hands of defendant, as sheriff, against the property of F. T. Fisher. Answer denying that plaintiff owned the merchandise, and alleging that the stock belonged to Fisher, and that the sale thereof by Fisher to plaintiff was made to hinder, delay, and defraud the creditors of Fisher, and in pursuance of a combination between plaintiff, Fisher, Charles Allen, and Edd Allen to cheat and defraud the creditors of Fisher. Trial by jury, verdict for plaintiff, and defendant's motion for new trial overruled, and judgment on the verdict. Defendant appeals.Blythe & Markley, French & Wright, and Kinsley & Shepard, for appellant.

R. Wilber and Cligget & Rule, for appellee.

GIVEN, J.

1. The facts in this case are quite numerous, but the following, with those hereafter stated, will be sufficient to an understanding of the questions presented. Fisher was in the boot and shoe business at Austin, Minn., and in October, 1888, opened a branch store at Mason City, sending goods there from Austin, and employed plaintiff's husband, Charles Allen, to take charge of the business, with the assistance of plaintiff as clerk. Charles Allen had a small stock of goods, from which he had been selling at Three Rivers, and which he put into the store at Mason City. Plaintiff and her husband were in charge of the business until November 25th, when Fisher sold his stock to the plaintiff, and executed to her a bill of sale reciting the consideration to be $4,666.33, which was originally written $5,500, and changed at the request of the parties. There is no question but that plaintiff did then pay money to Fisher for the goods, but appellant claims that it was not her own, but money furnished, directly or indirectly, by Fisher and Edd Allen, to give seeming fairness to the sale. Much of the contention is as to the sum paid, and whether plaintiff was able to pay it. Plaintiff and her husband continued in possession of the store and goods until December 4, 1888, when the defendant, as sheriff, seized the entire stock as the property of Fisher, under writs of attachment, and thereafter held the same in the store-room. Charles Allen assigned to the plaintiff his part of the goods, and plaintiff served notice of ownership on the defendant, but he refused to surrender the goods to her. There is a conflict as to the value of the goods put in the store by Charles Allen, and as to what was done in the way of demand and refusal to separate them from other goods. The 79 assignments of error present inquiries as to certain rulings of the court on admitting and rejecting testimony, in giving and refusing instructions, and in overruling defendant's motion for a new trial. The second assignment embraces 18 exceptions to rulings sustaining plaintiff's objections to questions propounded to her on cross-examination. To discuss each assignment separately would serve no good purpose, and extend this opinion to an unwarranted length. It will be sufficient that we notice the alleged errors substantially as grouped in the arguments.

2. Appellant complains that he was improperly restricted in the cross-examination of the plaintiff. We recognize the rule that a large latitude should be allowed in such cross-examination, but we think the many pages of cross-examination contained in the abstract show that the defendant was not unmindful of his privilege. The questions to which objections were sustained were either as to incidental or immaterial matters or covered by previous inquiries. The cross-examination of a party, even in such a case as this, must have a limit, and we think, in view of the extended cross-examination, there was no prejudicial error in the rulings of the court on the question embraced in the second assignment of error.

3. Four witnesses had testified in deposition as to the value of the goods kept by Mr. Allen at Three Rivers. None of these witnesses had any experience in buying or selling that kind of merchandise, and three of them testified from the observation of the goods as seen in the store at Three Rivers, without any knowledge as to their quality, quantity, or cost. The other witness, a butcher by trade, had been employed by Allen to look after the store. He had no experience in that line of business, never made any estimate of the quantity, quality, or value of the goods, and had no knowledge of their value, except as marked for retail. The valuation by such witnesses was a mere guess, and does not attain to that certainty that entitles it to be considered as evidence. There was no error in striking these parts of the deposition.

4. Defendant offered to prove that Fisher, in giving testimony on December 4, 1888, stated that he had shipped the goods to plaintiff in the original packages in which they came from the wholesale dealers; that he received from her $4,600 cash; that he told her he wanted the money, and nothing else; that his bills became due soon, and he must have pay for the stock; that he took the money to Austin, but did not deposit it, and lost it in a gambling-house in St. Paul, and did not know where the house was, the name of the proprietor, nor the parties with whom he played; that the sales at Mason City amounted to seven hundred or eight hundred dollars, up to the time he sold out; and that no invoice was taken at the time of the sale to plaintiff. The further offer was that Fisher testified that, on December 1st, he attempted to dispose of his stock at Austin for 80 cents on the dollar to one Bluestone, sent there by and in company with the book-keeper of Edd Allen, and that one Oaks shoved money from his person over to Bluestone with which to pay Fisher. Plaintiff's objection to the testimony was sustained. The practice of counsel, stating in the presence of the jury what they offer to prove, is not entitled to favor. Every practitioner knows that this practice is sometimes resorted to for the purpose of getting before the jury statements that are not admissible, in the hope that the jury may not discriminate between such statements and the testimony. The better practice is to present the offer by interrogatories, as, in most instances, the admissibility of the offered testimony can be fully raised by a few questions. If this is not practicable, the offer may be stated to the court in writing, and made a part of the record. By the practice suggested, the result in the case is placed beyond the suspicion of having been reached by statements not admitted in evidence. There is nothing in the record in this case to indicate that the practice we condemn was resorted to. It does not appear that the offer was made in the presence of the jury, that it exceeded what appeared in the written testimony of Fisher, nor that it was not made in writing. Appellant's contention is that these statements of Fisher's were admissible, as tending to show an intent, on his part, to hinder, delay, and defraud his creditors, and as the declarations of a co-conspirator. It will be observed that Fisher is not a party to this action; was not a witness. That the statements offered were not made until nine days after the sale to plaintiff; were made in her absence; and were as to past transactions. That the statements were made under oath does not affect the question of their admissibility. These statements were no part of the transaction with the plaintiff. The sale to her was fully completed. The alleged intent to defraud the creditors of Fisher by the sale, whether in pursuance of a conspiracy or otherwise, had, if it existed, been fully consummated, and therefore the statements are no part of the res gestæ. Bogert v. Phelps, 14 Wis. 95;Hamilton v. Lightner, 53 Iowa, 470, 5 N. W. Rep. 603;Guaranty Co. v. Gleason, 78 N. Y. 515; Bump, Fraud. Conv. 580. The general rule is that statements made by a grantor, after he has parted with his title, tending to impeach his grantee's title, are not admissible. An exception to this rule is where the grantor and grantee conspire together to defraud third persons. Kennedy v. Divine, 77 Ind. 491;Williams v. Eikenbury, (Neb.) 41 N. W. Rep. 770;Bank v. Corcoran, 2 Pet. 121. Under this rule, the statements offered are inadmissible unless they come within the exception. Declarations of conspirators are only admissible as a part of the res gestæ. Bump, Fraud. Conv. 584; Guaranty Co. v. Gleason, supra. As already stated, the making of these statements was no part of the res gestæ. The declarations, to be admissible, must have been “made in the execution of the common purpose, and in aid of its fulfillment.” Wait, Fraud. Conv. § 280. The common purpose to hinder, delay, or defraud the creditors, if it existed, was consummated when the sale was made, and these statements are not made in aid or execution of it. We see no error in excluding the offered testimony.

5. There was no error in overruling the motion to strike from the deposition of Cannon. In answer to the question, “State any other fact you know of interest to the plaintiff,” he said that, in 1887, she offered $2,500 for a house, and at that time had a large package of money in her hand. This testimony was admissible as bearing upon the question of plaintiff's ability to pay Fisher for the goods. We do not deem it necessary to discuss the other errors assigned and argued as to admitting and rejecting testimony. We have examined each assignment with care, and...