Benjamin v. The Mcelwaine-Richards Company
| Decision Date | 26 April 1894 |
| Docket Number | 1,083 |
| Citation | 37 N.E. 362,10 Ind.App. 76 |
| Parties | BENJAMIN v. THE MCELWAINE-RICHARDS COMPANY ET AL |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Judgment reversed.
G. D Hurley, M. E. Clodfelter, D. P. Vinton and H. H. Vinton, for appellant.
B Crane and A. B. Anderson, for appellees.
The appellee, The McElwaine-Richards Co., recovered a judgment against one Rial Benjamin, a brother of the appellant, and had an execution issued upon the same and placed in the hands of the appellee Bible, as sheriff of Montgomery county, for collection. Bible levied the execution upon a stock of plumbers' goods, as the property of said Rial Benjamin and took the goods into his possession.
This action was instituted by the appellant against the appellees, to recover the possession of said property.
The complaint, which is in one paragraph, alleges that the plaintiff is the owner and lawfully entitled to the immediate possession of the property described, which is of the value of $ 800, and is unlawfully detained by the defendants, etc.
Upon issues joined, the cause was submitted for trial to a jury, who returned a verdict in favor of the appellees.
The only error assigned is the overruling of the appellant's motion for a new trial.
The appellant claims to be the owner of the property under the following circumstances and facts: Rial Benjamin, appellant's brother, was the owner of the stock of goods in controversy. The appellant, on the 1st day of December, 1892, was, and for several years had been, engaged in business at Lafayette, Indiana, selling plumbing materials at wholesale and retail. At that time appellant had indorsed for his brother and furnished him goods and otherwise accommodated him to the amount of $ 800, and, on that day, Rial Benjamin executed to his brother, in settlement of this indebtedness, his two promissory notes, one for $ 800, payable June 1, 1893, and one for $ 1,000, payable December 1, 1893. To secure these notes in part, Rial Benjamin executed to the appellant a chattel mortgage on said goods in the city of Crawfordsville. The mortgage was duly recorded within the ten days. On the 9th day of December, 1892, Rial Benjamin turned the mortgaged property over to the appellant in part payment of the mortgage notes, and appellant gave credit on one of the notes for $ 800, the estimated value of the goods. On the 15th day of December, 1892, the appellee, The McElwaine-Richards Co., obtained the judgment already referred to, which was for $ 1,051, and on the same day caused an execution to issue thereon, which was levied by the sheriff, as stated.
The appellee's version of the facts is, that at the time of the transactions mentioned, the appellant was the secretary of the O. P. Benjamin Manufacturing Company, a corporation doing business at Lafayette, Indiana, engaged in selling plumbing goods and supplies. Rial Benjamin was engaged in business at Crawfordsville, where he had a shop and stock of goods worth, at the time of the transaction between the brothers, about $ 1,200 to $ 1,500.
On December 1, 1892, Rial Benjamin was indebted to the McElwaine-Richards Co., for goods sold him, in the sum of about $ 1,000, which was reduced to a judgment, in the Montgomery Circuit Court, on December 15, 1892, and upon which judgment execution issued at once, which was placed in the hands of the sheriff who levied it, as stated before.
On December 1, 1892, Rial Benjamin went to Lafayette and gave the appellant two notes, one for $ 800 and the other for $ 1,000. He returned to Crawfordsville, and, on the next day, executed to the appellant the chattel mortgage referred to on his entire stock of goods to secure these notes. This mortgage was not filed for record till Saturday, December 10, 1892, at 4:30 o'clock P. M., on the last day it could have been recorded. Before this mortgage was filed for record by appellant, to wit, on December 9, 1892, an arrangement was made by which the mortgaged property was all turned over to the appellant as of the agreed value of $ 800, and that a credit for that amount was placed on the note last due, by which act the appellant claims he became the owner of the property, although the mortgage was not filed for record until the day subsequent to the alleged change of ownership. The execution was levied December 21, 1892; and the property levied upon and afterwards replevied was then worth $ 1,180, as found by the jury, and that during the intervening time between the transfer to the appellant and the levy, the value and amount of the property must have been materially reduced.
Other particulars are stated by the appellant's counsel as facts underlying the transaction, but it will not be necessary or useful to set them out in this opinion.
The appellee's theory is that the alleged sale or transfer of the property from Rial Benjamin to the appellant was fraudulent and void, having been made with the intention of cheating, hindering and delaying the creditors of said Rial Benjamin, while the appellant insists that the transfer was made in good faith, in payment of a bona fide indebtedness, and to give preference to one creditor over another, or others.
The first alleged error assigned in the motion for a new trial consists in admitting the testimony of one George Compton, a witness introduced by the appellees, as to a conversation had by the witness with Rial Benjamin after the alleged transfer of the property to the appellant. The testimony was to the effect that Rial Benjamin told the witness that he had given his brother a mortgage on the property on December 1, 1892, the conversation being on December 14, 1892; and that he further told witness that he gave the mortgage to protect the McElwaine-Richards Co., whom the witness represented; and that he (Rial Benjamin) was afraid Smith and Webster were going to close him up and that he wanted to protect witness's company and his brother also; that witness asked him how much he owed his brother, and he said: "Just a trifle," but stated no amount at that time.
The appellant objected to the testimony on the ground that "it is a statement of the witness and made concerning the property after Rial Benjamin had parted with the title to the property, and it can not affect Oscar P. Benjamin in any way, and it is not shown that he acted in any way upon it;" and that the proposed testimony "was a statement in regard to the property made in the absence of Oscar P. Benjamin, and after Rial had parted with the title to the property and it could not affect the plaintiff Oscar P. Benjamin in any way or manner."
The objection was overruled, and the appellant excepted.
The court stated some reasons for the admissibility of the testimony, but it is not necessary to determine whether these were sound or unsound, if the testimony was admissible upon any ground.
The appellant's contention is that the testimony was incompetent because the conversation testified about occurred on December 14th, 1892, being fourteen days after the execution of the mortgage, and five days after the transfer of the property and the placing of the credit upon the note. The appellant's counsel base their contention upon the familiar rule that the admissions of a vendor of property, after he has sold the same and parted with the possession, are not admissible against his vendee. Campbell v. Coon, 51 Ind. 76; Tyres v. Kennedy, 126 Ind. 523, 26 N.E. 394.
This contention can not prevail. The principle sought to be invoked has no application to the case in hand for more than one reason. In the first place it was a disputed question whether or not Rial Benjamin had parted with the ownership and possession; that he was still in the active, physical control of the property is not disputed. The appellant's position is that he was there as the agent of appellant, and the possession and ownership exercised by him after the alleged transfer was that of an agent in behalf of his principal. This position is stoutly contested by the appellees, who maintain that the facts and circumstances of the case show that in reality no change of possession had taken place, and we are not permitted to say that there was absolutely no evidence which might warrant such an inference. The question was one for the jury, and if they determined upon any evidence proper to be considered upon the question, that Rial Benjamin was still in possession of the property, in his own right, his declarations would be competent for their consideration. Tyres v. Kennedy, supra.
But the testimony was proper for another reason. The appellee's theory was that the transaction constituting the alleged transfer was fraudulent, and that it was made with the intent and for the purpose of hindering, cheating, and delaying the creditors of Rial Benjamin. This being an action in replevin, no special averment or pleading was necessary charging fraud upon the appellant and the vendor of the property. The general denial to the plaintiff's complaint put in issue the entire question of ownership and the right of possession of the plaintiff. Anything that tended to negative the proposition that the plaintiff was the owner, and entitled to the possession, was legitimate evidence for the appellees. Now, in order to establish the fraudulent sale and transfer of the property, it was necessary to prove such fraud against both the vendor and the vendee, and hence it is, generally speaking, proper to prove the fraudulent vendor's admissions as against himself and the fact that the court did not, in its ruling upon the admission of the testimony, and in its instructions, limit its admissibility to the extent of binding or affecting Rial Benjamin only, can not affect the question of...
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