Gardom v. Woodward

• Decision Date: 06 December 1890
• Citation: 25 P. 199,44 Kan. 758
• Parties: F. A. GARDOM et al. v. B. W. WOODWARD et al
• Court: Kansas Supreme Court

25 P. 199

44 Kan. 758

F. A. GARDOM et al. v. B. W. WOODWARD et al

Supreme Court of Kansas

December 6, 1890

Error from Morris District Court.

THE opinion states the facts.

Judgment reversed and cause remanded.

J. K Owens, and John T. Bradley, for plaintiffs in error.

J. Jay Buck, and E. S. Bertram, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Morris county on February 17, 1888, by B. W. Woodward, F. A. Faxon and J. C. Horton, partners doing business under the firm-name of Woodward, Faxon & Co., against F. A. Gardom, to recover the sum of $ 794.25, on an account. At the same time an order of attachment was procured in the case upon the following grounds, as alleged in plaintiff's affidavit therefor, to wit:

"That said defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, and has property and rights in action which he conceals; has assigned, and is about to dispose of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors."

The order of attachment was levied upon certain personal property as the property of Gardom, valued by the appraisers at $ 1,650.36. On April 9, 1888, Gardom filed a motion to discharge the attachment upon the ground among others, that the grounds set forth in the plaintiffs' affidavit for the attachment were not true. On the same day John A. McQuistan, with leave of the court and under the provisions of chapter 137 of the Laws of 1877, (Gen. Stat. of 1889, P 4123,) filed an interplea claiming that the personal property attached belonged to him. The plaintiffs replied to this interplea. On April 23, 1888, by consent of the parties and the court, a trial was had before the court without a jury upon both the motion and the interplea upon the same evidence. The decision of the court below was in favor of the plaintiffs and against Gardom and McQuistan, and they, as plaintiffs in error, bring the case to this court for review.

It appears that the attached property once belonged to the defendant, Gardom, but that prior to the levying of the attachment, and on January 5, 1888, McQuistan purchased the same from Gardom for the sum of $ 1,234.45, that amount being the amount of a promissory note, with interest, which McQuistan at the time held against Gardom. The plaintiffs claim that this sale was a sham, made for the purpose of hindering, delaying and defrauding the creditors of Gardom; but Gardom and McQuistan claim that the sale was made in the best of faith. Whether the sale was a sham or not, or whether it was made in good faith, was about the only material question presented to the court below for its determination. If it was a sham sale, then, as to the plaintiffs, the property belonged to Gardom, and the plaintiffs were entitled to their attachment; but if it was an honest and bona fide sale, then the property belonged to McQuistan, and the plaintiffs were not entitled to their attachment. During the trial the defendant Gardom was examined as a witness on the part of himself and McQuistan, and he was asked the following, among other questions:

"I wish to ask you about these matters: there are three charges against you -- one is that you were about to convert your property, or a part thereof, into money for the purpose of placing it beyond the reach of your creditors. I wish you to state to the court whether or not you were about, at the time of the attachment -- at, or before, or about that time -- if you were about to convert your property, or a part thereof, into money for the purpose of placing it beyond the reach of your creditors?"

The plaintiffs objected to the question upon the ground that it was "incompetent, irrelevant, and immaterial, and called for a legal conclusion"; and the court below sustained the objection, to which Gardom and McQuistan excepted. The witness was also asked the following question, to wit:

"He charges you with having assigned your property, or a part thereof, with the intent to hinder, defraud, and delay your creditors. Is that true -- did you have any such intent?"

To which the plaintiffs objected as "incompetent, and as involving a question of law," which objection was sustained by the court, and the ruling duly excepted to.

It will be perceived that these questions were not objected to on the ground of their form, or that they were leading, but upon the grounds in substance that the evidence to be elicited by them would be incompetent, irrelevant and immaterial, a legal conclusion and a question of law. We think the court below committed error. A vital question involved in the case was whether the aforesaid sale was made in good faith, or was a mere sham, and made for the purpose of hindering, delaying and defrauding Gardom's creditors. Whether the sale was in good faith or not depended upon the state or condition of Gardom and McQuistan's minds, their thoughts, intentions motives; and the aforesaid questions were asked for the purpose of eliciting evidence tending to show what the condition of Gardom's mind, in particular, was -- his intentions and motives. Dr. Wharton, in his work on the Law of Evidence, (§...