Farley v. Colver

• Decision Date: 22 June 1910
• Citation: 77 A. 589,113 Md. 379
• Parties: FARLEY v. COLVER.
• Court: Maryland Court of Appeals

77 A. 589

113 Md. 379

FARLEY

v. COLVER.

Court of Appeals of Maryland.

June 22, 1910.

Appeal from Baltimore Court of Common Pleas; Thos. Ireland Elliott, Judge.

Action by Alonzo H. Colver, trading as the American Sand Company, against James F. Farley, garnishee of John E. Coppersmith, a judgment debtor. From a judgment against the garnishee, he appeals. Affirmed.

The following is the instruction of the court:

"The court instructs the jury that if they shall believe from the evidence offered in this case that the transfer from John E. Coppersmith to Margaret E. Coppersmith, dated July 2, 1008, was bona fide, and shall further find that the money paid by James F. Farley to him, the said John E. Coppersmith, was paid in extinguishment of an indebtedness owing by said Farley to the said Margaret E. Coppersmith, then their verdict must be for the garnishee, James F. Farley; but if they shall believe that said transfer was false and fraudulent and intended to hinder and defraud the creditors of the said John E. Coppersmith, and that the money paid by James F. Farley was the money belonging to the said John E. Coppersmith, then their verdict should be for the plaintiff to an amount not exceeding his judgment, interests, and costs, which they shall find was paid by said James F. Farley to said John E. Coppersmith subsequent to the 3d day of July, 1908, the date of the laying of the attachment."

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, and URNER, JJ.

John L. G. Lee, for appellant.

R. Howard Bland and J. Kemp Bartlett, for appellee.

BRISCOE, J. This case was tried in the court of common pleas of Baltimore City, and on the 22d day of September, 1909, resulted in a verdict for $574.49 in favor of the plaintiff. The defendant, James F. Farley, garnishee of John E. Coppersmith, the judgment debtor, has appealed.

The facts set forth in the record appear to be as follows: On the 20th of June, 1908, the appellee, Alonzo H. Colver, trading as the American Sand Company, obtained a judgment against John E. Coppersmith for the sum of $481.89, with interest and costs, in the court of common pleas of Baltimore. On the 2d day of July, 1908, the appellee directed an attachment to issue upon this judgment, and it was laid in the hands of the appellant as garnishee to bind funds due the judgment debtor by the appellant, Farley. John E. Coppersmith, the judgment debtor, was engaged in the sand and hauling business, at Long Dock, Baltimore city, and on the 3d day of July, 1908, by an agreement in writing dated on the 21st day of July, 1908, in consideration of the sum of $250, assigned and transferred all his interest in the business, including the good will, and all the horses, carts, and implements owned and used by him, in the conduct of the business, to his wife, Margaret E. Coppersmith. The husband, under the agreement, was to be employed by the wife, as the manager of the business for a period of five years at a salary of $10 per week. Farley, the garnishee, is a builder and a contractor, of Baltimore city, and had employed Coppersmith to do hauling for him, and dealt generally with him, in the sand business, prior to and subsequent to the date of the attachment. It is conceded that the payments made by the appellant to the judgment debtor from the date of the laying of the attachment to the date of the trial of the case were more than sufficient to pay the appellee's judgment, but it is urged upon the part of the appellant that the funds so paid was money owing and belonging to the wife, and not to the husband, and was not therefore liable, under the attachment. The single controverted question of fact, then, is whether the money paid by the appellant was the property of Coppersmith or belonged to his wife, and this question, we think, was properly left to the jury by the instruction granted by the court, as will hereafter appear, in the discussion of the granted prayer in connection with the evidence, set out in the record.

At the trial of the case, the defendant reserved three exceptions to the ruling of the court upon the admissibility of evidence and one to the action of the court upon the prayers. The court below rejected the prayers offered on behalf of the plaintiff and defendant and granted an instruction in lieu thereof, to the effect, if the jury find from the evidence that the transfer from Coppersmith to his wife, dated July 2, 1908, was bona fide, and shall further find that the money paid by Farley, garnishee, to Coppersmith was paid in extinguishment of an indebtedness owing by him to the wife, then their verdict must be for the garnishee; but if they find that the transfer was false and fraudulent and intended to hinder and defraud the creditors of Coppersmith, and that the money paid by Farley was the money belonging to Coppersmith, then their verdict should be for the plaintiff to an amount not exceeding his judgment, interests, and costs, which they shall find was paid by Farley to Coppersmith, subsequent to the date of the laying of the attachment.

The first exception was taken to the refusal of the court to permit the defendant Farley, who was called on behalf of the plaintiff, to state upon cross-examination to whom the money belonged, which he had in his hands from the laying of the attachment to the date of trial. The witness had testified, in chief, that he had employed Coppersmith to do work for him and on July 2, 1908, Coppersmith owed him the sum of $100, which was paid by a credit on bills due Coppersmith for work done "by Mr. or Mrs. Coppersmith or both"; that on July 30, 1908, he received a letter from J. Kemp Bartlett, attorney for the plaintiff, notifying him that the attachment upon the judgment which had been laid in his hands was intended to bind all the funds due or to become due by him to Coppersmith, whether growing out of transactions had in the name of Coppersmith or in the name of the wife, and also notifying him that at the trial of the case the plaintiff would offer evidence to show that the transfer of the business from Coppersmith to his wife was a mere pretense and a device for the purpose of defrauding his creditors, and the payment of any money to Coppersmith would be at bis peril. He further testified: That, after this letter, the bills were made out and receipted, "M. E. Coppersmith," per "J. E. C," until September 11th; then they were receipted, "J. E. Coppersmith." C bills being receipted, "M. E. Coppersmith," per "J. E. C," and the balance, 23 bills, were receipted, "J. E. Coppersmith." From July 2, 1908, till October 4, 1908, be continued to do business with John E. Coppersmith and the bills were rendered in the name of M. E. Coppersmith. Since October 4, 1908, the bills were made out for the hauling in the name of George W. Fleagle, Coppersmith's father-in-law. That all the money was collected and paid to Coppersmith. He further testified that the transfer of the business to Coppersmith's wife was made after the attachment was laid in his hands.

Upon this state of proof, we think the court below was right in sustaining the plaintiff's objection embraced in this exception. To have allowed the question would have permitted the witness in this case to have given his opinion as to the person to whom the money belonged. The practical question was whether the money belonged to Coppersmith or his...