Durlacher v. Frazer

• Decision Date: 17 December 1898
• Citation: 55 P. 306,8 Wyo. 58
• Parties: DURLACHER v. FRAZER
• Court: Wyoming Supreme Court

55 P. 306

8 Wyo. 58

DURLACHER v. FRAZER

Supreme Court of Wyoming

December 17, 1898

Commenced in District Court, January 29, 1897.

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Replevin by Hannah Durlacher, the holder of a chattel mortgage against Charles C. Frazer, sheriff of Albany County, who held the goods included in the mortgage by virtue of writs of attachment issued at the suit of various creditors of the mortgagor. Judgment for defendant, and plaintiff brought error. The material facts are set forth in the opinion.

Affirmed.

C. E. Carpenter and John W. Lacey, for plaintiff in error.

Insolvency is to be proven by facts from which the jury may draw the inference, and not by reputation and opinions. Testimony of a witness, that in his opinion a party was insolvent, is not competent. (Stewart v. McMurry, 82 Ala. 269; Lawson v. Orear, 7 id., 785; Bank v. Parker, 5 id., 731.) As a general rule declarations of a vendor, after transfer and delivery of possession can not be given in evidence against the vendee. (Wait on Fraudulent Conv., Sec. 278, 85 Mich. 380; 116 U.S. 161; 86 Cal. 241; 111 N.Y. 278; 32 S. C., 582; 113 Mass. 76; 30 Kan. 353; 37 id., 457.) As against a mortgagee, evidence of declarations of the mortgagor long before the execution of the mortgage are incompetent. (111 N.Y. 278.) The creditor of an insolvent may secure himself, and thereby incidentally hinder and delay other creditors, if he act in good faith, though the debtor may to his knowledge have had an ultimate fraudulent purpose. (Hamilton-Brown Shoe Co. v. Whitaker, 23 S.W. 520; Owens v. Clark, 15 id., 101; 53 Kan. 713; Reynolds v. Weinman, 25 S.W. 33; Werner v. Zierfuss, 29 A. 737; Sabin v. Columbia, Etc. Co., 25 Or. 15; Currie v. Bowman, 35 P. 848; Kilpatrick Etc. Co. v. McPheely, 37 Neb. 800; 57 N.J.L. 532; 6 Tex. Civ. App., 238; id., 665; 144 U.S. 585; 87 Mich. 481; 99 Ala. 100; 53 Mo. App., 196; 38 Ill.App. 438; 60 Mo. App., 530.) A new note with security taken in good faith as additional security upon another note of the same debtor does not increase the debts of the debtor, but in such case, payments upon the new note will also pro tanto, discharge the old debt. (International Trust Co. v. Union Cattle Co., 3 Wyo. 803.) The plaintiff should not have been required to prove the honest character of the entire debt and the absence of fraudulent intent. The burden of proof upon those matters rested upon defendant. The instructions were erroneous in disregarding this rule. (Wait on Fraud't Conv., 271.) The law does not require an insolvent debtor to stand on his strict legal rights, and refuse to pay or secure every debt to which he might successfully interpose some technical defense. He may lawfully secure such debts. (32 Kan. 73; 7 R.I. 481; 76 Ind. 195; 114 id., 144; 101 id., 334; Bump on Fraud't. Conv., 220; 71 Ind. 459; 38 Tex. 245; 63 Me. 326; 13 Md. 494; 71 Ala. 202; 44 N.Y. 107; 26 N.Y.S. 194; 33 Wis. 391; 13 S.E. 619; 23 A. 269; 8 N.Y.S. 139; 9 So. 541; 5 S.E. 480; 47 Minn. 95; 4 Denio, 439; 47 N.Y. 544; 29 Barb. 480; 9 Hun., 161; 25 N.Y.S. 542; 42 Pa. 529; 65 id., 89.)

The dealings between an agent and his principal is a matter between them alone. If the principal in good faith chooses to ratify a contract made by his agent with himself, no one else can complain, and the contract is then as binding as any other contract. The ratification may be by acquiescence and acting upon the contract, by receiving and retaining the proceeds, or by any act which would ratify any other contract. (Mechem on Agency, 464; 21 Wall., 178; 105 Mass. 557.) A contract between a corporation and its officers is not void per se, but is merely voidable at the option of the corporation, if exercised in a reasonable time. (3 Thomp. on Corp., 4061; Thomas v. Ry. Co., 109 U.S. 522; Oil Co. v. Marbury, 91 id., 587; Gas Co. v. Berry, 113 id., 322; Leavenworth v. Ry. Co., 134 id., 688; Cornell v. Clark, 104 N.Y. 451; Stewart v. Ry. Co., 38 N.J.L. 505; Buell v. Buckingham, 16 Iowa 284; Crymble v. Mulvaney (Colo.), 40 P. 499; Kelly v. Ry. Co., 114 Mass. 496.) This is so in any instance, and the contract stands unless avoided or repudiated. (135 Mass. 367; 122 N.Y. 177; 130 Ill. 162; 61 id., 479; 77 id., 226; 3 So. 351; 60 Pa. 290; 21 P. 897; 57 F. 86; 40 N.Y.S. 702; 125 N.Y. 263; 34 O. St., 450; 44 P. 333; 14 Mo. App., 27; 2 Pom. Eq. Juris., Secs. 958, 959, 964; Perry on Trusts, Secs. 198, 207, 194-210; 144 N.Y. 333.)

The fact that the company retained possession of Bauman's property, the consideration of which was the assumption of his debts, was conclusive as to ratification of the contract for such assumption made by Bauman. The instruction was erroneous which stated that upon the plaintiff rested the burden of proving that the consideration of the transfer from Bauman to the company was the assumption of his debts to the satisfaction of the jury. The burden of proving consideration was not on the plaintiff, and it was not necessary that as to the matters which plaintiff was bound to prove, they should be proven to the satisfaction of the jury. (Ry. & Nav. Co. v. Onsley (Wash), 13 P. 186; Torrey v. Burney, 21 So. 348; Wolf v. Van Housen, 55 Ill.App. 295; 56 id., 558; Fordice v. Chancey (Tex.), 21 S.W. 181; 16 S.E. 845; 19 N.W. 295; 113 Cal. 467; 30 S.W. 512; 26 id., 885; 37 N.E. 916.)

Although the deed to the real estate contained a covenant warranting against all claims, the grantor was not estopped from showing by parol evidence that, as a part of the consideration, the grantee agreed to pay the grantor's debts, some of which were represented by mortgages upon the property. (Bolles v. Beach, 22 N. J., L., 680; Nelson v. King, 23 N.J. Eq. 150; 42 Mich. 444; Harris v. Guerin, 27 N.J. Eq. 219; 13 Allen, 168; Preble v. Baldwin, 6 Cush., 549; Becker v. Knudson, (Wis.), 56 N.W. 192; Hays v. Peck (Ind.), 8 N.E. 274; Bowen v. Kurtz, 37 Iowa 239; 1 Jones on Mort., Sec. 750.) Certainly a stranger to the deed is not estopped from showing the facts; and, in this case, plaintiff is a stranger to the deed. (Dempsey v. Kipps, 61 N.Y. 462; Lee v. Adsit, 37 N.Y. 78; Brown v. Thurber, 77 id., 613; 10 Minn. 255; 1 Greenleaf's Ev., 14th ed., 279; Sheephy v. Fulton (Neb.), 57 N.W. 395; Fonda v. Burton (Vt.), 22 A. 594; Bruce v. Lumber Co. (Va.), 13 S.E. 153; 62 Iowa 212; 119 Mass. 99; 10 N.H. 359; 3 B. & A., 838; 2 Wharton's Ev., 923, 1040, 1047, 1078; 25 N.H. 425; 92 N.C. 253; 11 Ill.App. 303; 19 La., Ann., 49; 15 id., 579; 7 B. Mon., 589; Pothier on Obligations, Vol. 1, p. 427; 3 B. & A., 838; 50 Md. 351.)

Anyone, though insolvent, may become surety for another, and if it shall become necessary to make the suretyship effectual, he has the right to mortgage his property as security for such debts. (8 O. St., 511; 121 U.S. 310; 101 Ind. 289; 109 id., 514; 117 id., 164; 64 Iowa 175; 34 Kan. 35; 46 id., 335; 32 N.E. 187; 12 S.E. 297; 16 S.W. 124; 52 Ill.App. 471.) A corporation, as against creditors, with the assent of all its shareholders, has the same rights in good faith to secure debts of other persons that an individual has. (113 U.S. 534; 31 F. 151; 32 S.W. 300, Md.; 17 So. 528; 18 id., 619; 28 S.W. 286; 56 N.W. 116; 30 F. 864; 34 A. 316; Conway v. Smith Merc. Co., 6 Wyo. 468.) It is believed, however, that, in this case, the debts secured are shown to have been the debts of the company.

M. C. Brown, C. P. Arnold, and N. E. Corthell for defendant in error.

Affirmative error must appear, and can not be presumed. (6 Wyo. 171; id., 123.) The admission of immaterial evidence is not reversible error unless it clearly appears that it has prejudiced or injured the opposite party. (1 Wyo. 284.) And it is due the court that an objection to evidence should be explained and the grounds specified at the time. (2 Wyo. 140.) And a party is not prejudiced by the admission of unauthorized or incompetent declarations, where the same facts are brought out by other testimony not objected to, or by evidence of the complaining party's own witnesses. (6 Wyo. 123.) Where there is a substantial or missing link in plaintiff's case, error occurring in the admission or rejection of evidence on other questions in the case can not be held prejudicial. (3 Wyo. 680.) An objection or motion to strike out testimony may be too broad or indefinite. (49 P. 478, Wyo.) Where it is clear that the verdict is right, and that a new trial would, under correct instructions, produce the same result, a new trial will not be granted. (3 Wyo. 657.) It is not error to refuse repetition where all that is material in the instructions refused has already been given. (3 Wyo. 120.) Where one is entitled to a peremptory instruction for a verdict in his favor, every rejected request of the adverse party necessarily proposes a false issue. (2 Wyo. 108.) Mr. Bauman should, from his position, have given a plausible and consistent account of the contract claimed by him to have been made. (4 Wyo. 5.) To constitute a contract, there must be two or more parties, an adequate consideration, and it must be one not prohibited by law. The minds of the parties must meet, and there must be an offer by one party and an acceptance by the other. (Bish. on Cont. Secs. 250-259; id., Secs. 8, 9, 10, 174; 76 F. 654; 83 id., 792; 46 N.Y. 476; 36 id., 307; 3 C. E. Green, 315; 34 Hun., 74.)

Not only was there no contract between Bauman and the company but there was no consideration for one. Even assuming for the sake of argument that Bauman and the company did attempt to make a contract whereby the company was to assume the payment of $ 22,705.28 the debts of Bauman, as a consideration in addition to its payment in full for the property by the issue of its stock at its par value, such a contract would necessarily result as the record...