Eigenbrun v. Smith
| Decision Date | 05 December 1887 |
| Citation | 4 S.E. 122,98 N.C. 207 |
| Parties | EIGENBRUN v. SMITH, Sheriff. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Vance county; J. H. MERRIMON, Judge.
Plaintiff having introduced a deed of trust on which he relied for title to a stock of goods, and which was alleged to be fraudulent, the court suggested that defendants show the fact on which they relied to establish fraud. Plaintiff announced that he would close his case, and present other witnesses in rebuttal. Defendants introduced no testimony. Held, that as plaintiff made no request to introduce further testimony, but went to the jury, if he lost the evidence of his most important witnesses it was his mistake, and was no ground for a new trial.
E. C Smith and H. T. Watkins, for plaintiff.
T. M Pittman, for defendant.
Civil action tried before MERRIMON, J., at May term, 1887, of Vance superior court. The plaintiff claims certain property mentioned in the pleadings, under--First, a deed of trust executed by Robinson & Holt to H. T. Watkins, dated March 17 1886; and, second, a bill of sale from the said trustee and Robinson & Holt to himself, dated March 19, 1886. The defendant Smith is the sheriff of the county of Vance, and, as such, levied upon and took possession of said property under execution in favor of his co-defendants M. M. Cohen and Charles Cohen, who allege that the deeds under which the plaintiff claims were made to defraud creditors, and void as against them, they being creditors. The issues submitted were: (1) Is the plaintiff the owner and entitled to the possession of the property claimed in the complaint? (2) What was the value of the property?
The plaintiffs offered in evidence the deed of trust and bill of sale, the execution of which was proved. He then introduced G. W. Holt, who testified that he was one of the partners of Robinson & Holt, but did not sign the bill of sale; that he had relinquished to the plaintiff, Eigenbrun, his interest in the goods mentioned in the bill of sale, except his personal property exemptions. He testified, further, that he knew the goods which were seized by the sheriff, the defendant, and that they were part of the same goods sold to plaintiff, and the cost price of the goods seized by the sheriff was $120; that the goods consisted of clothing and shoes; that they were winter goods; that they were seized in March, and were at that time in possession of H. T. Watkins, trustee; that the cost value of the whole stock of goods would have been about $2,000; that the value of the personal property assigned to him as personal property exemptions was not worth $500; that the stock of goods was worth $2,000, exclusive of the personal property exemptions; that his exemptions were appraised by Willie Britt, Lewis Barnes, and Benjamin Smith, and that C. W. Cole, deputy-sheriff, had charge of the appraisers; that Sam Davis, a clerk in the store, sued the firm of Robinson & Holt, and got a judgment, and had the personal property exemptions of himself and Robinson set apart; that an inventory of the goods was taken.
At this point in the examination of Holt, the court inquired of plaintiff's counsel if it was their purpose to go into their entire case at this time, and the counsel replied that it was, and defendant's counsel stated that he had no objection. Whereupon the court stated that as the supreme court had said in regard to the deed of trust that they were not prepared to say that the deed upon its face was void for fraud, but the evidence of fraud apparent upon the face of the deed might be considered by the jury in connection with other facts and circumstances in ascertaining whether the deed was made with a fraudulent intent, the court would, in the interest of time, require the defendants at this point to show such facts and circumstances outside of the deed as they relied upon to establish that the deed was made to defraud creditors.
The counsel for the defendant then cross-examined the witness at much length in regard to the time, manner, and circumstances under which the bill of sale was executed, tending to impeach it by showing that it was in the night; that the door was closed; that the sheriff was at the door, and not permitted to enter; that the claim of the defendants M. Cohen & Sons was resisted--and other facts and circumstances tending to show, as defendant insisted, that the transaction was not bona fide. After the cross-examination, the witness was re-examined by counsel for plaintiff, his testimony tending to show, as plaintiff alleges, the bona fides of the transaction.
The deed provided, among other things, that Robinson & Holt should be employed by the trustee as salesmen at $50 per month each, and in reference to this the plaintiff then introduced J. R. Barnard, who testified that he was employed to take charge of the stock of goods by Watkins; had 25 or 30 years' experience as a merchant; that the inventory was taken with ordinary care; that he didn't think $50 a month each was too much for Robinson & Holt, but didn't know what a clerk was worth in Henderson; that it is customary to pay clerks more for temporary employment.
Plaintiff then introduced Lewis Barnes, Willie Britt, and Benjamin Smith, the appraisers who set apart the personal property exemptions of Robinson & Holt. These witnesses all testified that they didn't give more than $500 worth of goods to each.
Plaintiff then introduced C. B. Cole, who testified that he was the deputy-sheriff who had charge of the appraisers, and that the setting aside of the personal property exemptions was carefully done. On cross-examination he testified that he had in his hands the executions of M. Cohen & Son against Robinson & Holt, and that he couldn't get into the store-house because it was fastened up; that it was about midnight before he could get in; that he saw Robinson & Holt. Robinson didn't have much to say. One time witness tried to get in the store, and Robinson slammed the door. That witness got the execution after 12 o'clock in the day, and was trying to get in the stores from time to time until midnight. Plaintiff then examined witness, and he testified that he had no execution against Watkins, but the execution was against Robinson & Holt. Eigenbrun claimed the goods, and forbid the levy.
At this point the plaintiff, Eigenbrun, was sworn, and called to the witness stand, but, before he was examined, counsel for plaintiff agreed that certain witnesses, who had been subpoen d to testify as to character only, might be introduced and examined by the plaintiff because they were business men in the town, and desired to be set free. The plaintiff then introduced four witnesses, who testified that the general character of Augustus Wright and the plaintiff, Eigenbrun, was good. Plaintiff then announced that he would close his case and introduce Wright, Eigenbrun, and other witnesses in reply. The defendants then said that they would introduce no testimony.
The court charged the jury as follows: ...
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