Deere & Co. v. Wolf

• Decision Date: 01 February 1889
• Citation: 41 N.W. 588,77 Iowa 115
• Parties: DEERE & CO. v. WOLF et al
• Court: Iowa Supreme Court

41 N.W. 588

77 Iowa 115

DEERE & CO. v. WOLF et al

Supreme Court of Iowa, Des Moines

February 1, 1889

Decided January, 1889.

Appeal from Adams District Court.--HON. R. C. HENRY, Judge.

ACTION by attachment. The intervenor (a bank) claims certain goods attached. The issues arising upon this claim are involved in this appeal. The cause was tried to a jury, and a judgment had for plaintiffs. The intervenor appeals. The case has before been in this court. See 65 Iowa 32.

AFFIRMED.

C. S Keenan and J. W. McDill, for appellant.

James McCabe and Smith McPherson, for appellee.

OPINION

BECK, J.

The cause may be more conveniently disposed of by considering the objections to the judgment as nearly as possible in the order of their discussion by the counsel of intervenor.

I. The intervenor claims to be the absolute and unqualified owner of certain personal property which plaintiff caused to be seized upon an attachment in this case. This claim of ownership is based upon a transfer by the defendant to the intervenor of property of considerable value, in payment of an indebtedness from defendant to the intervenor. Plaintiffs claim that this transfer is void, for the reason that it was made in pursuance of a contract to "stifle, hinder and prevent a prosecution against defendant for the crime of forgery," and for the further reason that it was made with the intention of defendant, and all persons participating therein, to hinder, delay and defraud the creditors of the defendant, among whom were plaintiffs. The intervenor claims to have purchased the personal property of defendant Wolf in payment and satisfaction of all claims held by it against him.

II. The president of the intervenor was examined as a witness, and testified to the transactions of the bank in connection with the claim it held against Wolf, and the transfer of property in payment therefor. His statement is not clear, and need not be repeated. He states, among other things, that in the transaction he issued a certificate of deposit for five thousand dollars, which, as he says, was given to represent the difference of certain accounts. Thereupon he was asked this question: "How did you make your deposit account balance?" His answer is in these words: "I cannot explain to you the book-keeping. That balances itself. If you take off five thousand dollars bills receivable, and write a certificate of deposit for five thousand dollars, that balances." Counsel now insist that the evidence was erroneously admitted. The issue involved the good faith of the alleged payments made by defendant, and whether the transaction was, on the part of the intervenor, with the purpose of delaying and defeating creditors. It was proper for the plaintiff to demand a full disclosure of all the transactions, to the end that it might be determined whether they were honest and fair, whether there was an actual payment of the intervenor's claim and the purpose with which it was paid. It appears to us the answer tended to throw some light upon these matters. The evidence was therefore rightly admitted.

III. Certain conversations were had by a witness with the president of the bank after the alleged transfer of the property, in which he, in effect, stated that the property was held as security. To this evidence objections were made. We think they were rightly overruled. It was proper to determine just what interest the bank claimed to have in the property. This statement of its chief officer, who was authorized to speak for the bank, is competent as tending to show that interest.

IV. A witness testified that an attorney, who had taken a mortgage to secure another bank, testified that he had no authority to do so. The evidence was objected to on the ground of irrelevancy and immateriality. The attorney had before testified in this case, upon his cross-examination, that he had not testified as stated. The evidence was properly received to contradict and discredit his testimony, if it was competent for no other purpose. Objection is made to a question asked another witness, but the abstract fails to show that the question was answered. No error is therefore shown.

V. Other testimony as to the statements of the president of the intervenor, advising a creditor of the defendant to garnish, the bank, was admissible, on the ground that it tended to show that the intervenor did not purchase the property.

VI. Evidence was admitted, against the intervenor's objection, tending to show the amount realized from the sale of the property. This evidence tended to show the value of the property, which might have some bearing in determining the bona fides of the transaction.

VII. The court, in an instruction, directed the jury that, before they could find the sale fraudulent, it should be made to appear that the price paid by the intervenor was in excess of the real value of the property. This instruction is now complained of. It was doubtless given through mistake, into which the court may have been led by an instruction asked by the...