Carll v. Emery

• Decision Date: 27 November 1888
• Citation: 18 N.E. 574,148 Mass. 32
• Parties: CARLL et al. v. EMERY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 32

18 N.E. 574

CARLL et al. v. EMERY et al.

Supreme Judicial Court of Massachusetts, Plymouth.

November 27, 1888

COUNSEL

Day & Day and H. Kingman, for defendants.

C.W Sumner, for plaintiffs.

OPINION

DEVENS J.

The property transferred to the defendants, and for which the defendants agreed to account, as the evidence tended to show was so transferred with a view to delay and defraud the plaintiffs' creditors, and of this purpose both parties were cognizant. At a subsequent period the plaintiffs went into insolvency, and sought to avail themselves of the property for the purpose of satisfying their creditors to the extent of its value. For this purpose they demanded the proceeds of the defendants, who were apprised of the intention of the plaintiffs, and the object to which such proceeds were to be devoted. The defendants having refused this demand, the plaintiffs, who had made an offer of compromise to their creditors, paid into the insolvency court a sum which exhausted all their assets, including the amount of the checks, which were the property transferred to defendants. This sum was obtained partly by a loan made to them by one Chase, to whom they assigned their claim against defendants for the proceeds of the checks which defendants had received. The defendants requested an instruction to the jury that if they were satisfied, on all the evidence, that the checks were assigned to them "in order to prevent the plaintiffs' creditors from reaching the same by attachment or other legal means, or to hinder and delay said creditors in their lawful attempts to avail themselves of said checks or the proceeds thereof, in payment of their lawful demands, this action cannot be maintained." This request was refused, and the jury were instructed, "if the jury find that the defendants received those checks to have them cashed for the benefit of the plaintiffs, and received the money therefrom, and the plaintiffs thereafter demanded the same of the defendants for the purpose of paying a composition made in insolvency with their creditors, of which purpose the defendants were apprised, and the defendants refused to pay over said money to the plaintiffs or their order, then this action may be maintained, although the said checks were originally placed in the hands of defendants for collection, in order to hinder, delay, or defraud creditors."

We have no occasion to consider whether the defendants could have been permitted to defeat the contract they had made by proof that they had participated in a fraud upon plaintiffs' creditors, or whether the transaction described in the...