Bedford v. Penny
| Decision Date | 11 November 1885 |
| Citation | 25 N.W. 381,58 Mich. 424 |
| Court | Michigan Supreme Court |
| Parties | BEDFORD v. PENNY. |
Error to St. Clair.
Stevensons & Phillips, for plaintiff.
Chadwick & Wood, for defendant and appellant.
July 8 1884, F.E. Starkweather & Co., who were engaged in the hardware trade at Port Huron, Michigan, sold their stock to the plaintiff. Pratt & Co., creditors of Starkweather & Co. attached the goods in question in this suit as the property of Starkweather & Co., claiming the sale to plaintiff to be fraudulent, as being made with the intent to hinder, delay, or defraud their creditors in the collection of their debts. The plaintiff brought replevin for the property against the defendant, who held it as deputy-sheriff of St. Clair county under the attachment aforesaid. Plaintiff, previous to the sale of the goods and accounts of the Starkweather firm to him, had been a clerk in their store for about eight months, was familiar with the books, and knew the actual financial condition of the firm at the time of the sale. The firm was composed of Fred. E. Starkweather, William Curtis, and Benjamin Hillier. Curtis and Hillier attended to other business, and left the entire management of the firm matters to Starkweather. The business, under his management did not prosper, and, getting involved to a large extent, a a week or 10 days before the sale to plaintiff, Starkweather saw Curtis and Hillier, and explained to them the situation of affairs, and they, acting upon his statement, made the sale to plaintiff, asking Starkweather to sign the bill of sale, which he did without knowing the terms and conditions of the transfer. The theory of defendant upon the trial was that plaintiff, being a clerk of the firm, and knowing the shape of their affairs, had such knowledge of their financial embarrassment that if the sale on their part was fraudulent as against their creditors it was also fraudulent on the part of the plaintiff, he having sufficient knowledge of their intention to make the sale void, although he did not actually participate in the fraud. It was also claimed that the circumstances of the condition of the firm and their sale to plaintiff evidenced a fraudulent intent on the part of Starkweather & Co. against the rights of their creditors. The judgment in the court below was in favor of plaintiff, who claimed that the sale was in perfect good faith on his part. Error is assigned in that the plaintiff as a witness in his own behalf was allowed to state that he judged the stock to be worth $4,000 at the time he purchased; that he had no other purpose or intention than to acquire the stock at a fair price; that he bought it and the accounts in good faith and at what he considered a fair and full consideration. We see no objection to this testimony. It was competent on the question of his good faith, which was directly in issue, under former decisions of this court.
At the close of the evidence the defendant's counsel prepared and presented to the court a statement of the facts which he claimed were undisputed in the case, (such statement being of considerable length,) and followed it with this clause "upon these undisputed facts I charge you." After this came six propositions of law as applied to such facts. This method of presenting his points of law to the circuit judge was such that it became necessarily a simple request to instruct the jury; and if in any way the statement of facts as presented was not correct, the whole of the instructions asked would fall with it. We do not think the circuit judge under the testimony in the case would have been justified in finding the facts as presented to him by defendant's counsel, as he would have been usurping the province of the jury in so doing in relation to one or two points at least. Therefore there was no error in refusing the requests of the defendant's counsel. Upon the question of fraudulent intent the court instructed the jury as follows:
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