Bender v. Kingman & Company

• Decision Date: 10 July 1901
• Docket Number: 9,810
• Citation: 87 N.W. 142,62 Neb. 469
• Parties: PHILIP H. BENDER v. KINGMAN & COMPANY. [*]
• Court: Nebraska Supreme Court

87 N.W. 142

62 Neb. 469

PHILIP H. BENDER v. KINGMAN & COMPANY. ^[*]

No. 9,810

Supreme Court of Nebraska

July 10, 1901

ERROR from the district court for Thurston county. Tried below before EVANS, J. Affirmed.

AFFIRMED.

George G. Bowman, R. G. Strong and M. C. Jay, for plaintiff in error.

James H. McIntosh, contra.

POUND C. SEDGWICK and OLDHAM, CC., concur.

OPINION

POUND C.

This is an action of replevin involving possession of a stock of agricultural implements taken by defendants under attachments against Weiser Bros. and claimed by plaintiff as their vendee. The facts with respect to the transfer from Weiser Bros. to Bender are sufficiently set forth in the opinion in Kingman & Co. v. Weiser Bros., 48 Neb. 834, 67 N.W. 941. The trial court directed a verdict for the defendants, and such action and the receiving of testimony as to certain admissions made by Weiser Bros. are assigned as error.

Under section 20, chapter 32, Compiled Statutes, it is undoubtedly true that the intent of the vendor in an alleged fraudulent conveyance is always a question of fact. That is, certain circumstances appearing, it does not follow, as a matter of law, that there was fraudulent intent, but an actual intention to hinder, delay or defraud must have had a substantive existence in the mind of the vendor; and if there was no such intent, the law will not make one from his acts. But this question of fact differs in nowise from any other so far as the relative functions of the court and of the jury are concerned. Where, upon any issue of fact, the uncontradicted evidence is such that all reasonable men must reach the same conclusion, there is no need of submitting the issue to a jury and a verdict may be directed. Elliott v Carter White Lead Co., 53 Neb. 458, 73 N.W. 948. The evidence as to the intent of Weiser Bros. in making the sale was the same as that set forth in Kingman & Co. v. Weiser Bros., supra, and could leave no doubt in the mind of any one that they intended to hinder and delay their creditors and sold the property for that purpose. It was no less clear from the plaintiff's own testimony and that of his witnesses that he had ample notice thereof before he parted with the consideration. He took possession before the attachments were levied. But an inventory was necessary to determine the exact amount to be paid, and whether he was to give notes to Weiser Bros. or they to pay him depended on whether the stock should prove to exceed or should fall below the value of a certain interest in lands to be conveyed by the plaintiff in payment or part payment as the case might be. A bill of sale and a conveyance of the real property were drawn and were deposited in a bank pending the inventory, to be delivered "to ...