Hathaway v. Brown

• Citation: 18 Minn. 373
• Parties: RODERICK D. HATHAWAY v. WILLIAM BROWN, Sheriff, etc., and others.
• Decision Date: 01 January 1873
• Court: Minnesota Supreme Court

18 Minn. 373

RODERICK D. HATHAWAY

v. WILLIAM BROWN, Sheriff, etc., and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Olmsted county, denying a new trial.

H. C. Butler and McMahon & Clough, for appellants.

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Stearns & Start and C. H. Berry, for respondent.

RIPLEY, C. J.

The verdict in this case must be set aside, and a new trial granted, by reason of the erroneous rulings now to be stated.

The defendants' case is that the sale of the goods by Mills to the plaintiff, for the taking and conversion of which the action was brought, was made with intent to hinder, delay, and defraud the creditors of Mills, and that plaintiff knew it.

Plaintiff was called as a witness at the trial, and testified in his own behalf. On cross-examination he was asked by defendants' counsel as to what reasons Mills gave him, when he proposed the sale, for wishing to sell out to him. To which plaintiff replied: "Mills said he had an opportunity to travel by the month on a salary, and could do better than in trade, and that he was ready to trade for the land."

Upon his re-examination he was allowed, against defendants' objection, to answer the following question: "When he said he could do better traveling by the month, did Mills state to you how well he could do?" and stated that "he said he could get $1,600 per year, and wanted to sell out to accept that proposition. It was to collect and take orders for patent medicines, as an agent, as he said."

Since the defendants chose to put the question to plaintiff as to Mills' reasons, his answer thereto was evidence, though it would have been incompetent upon the examination in chief, and though, as plaintiff contends that it was, it were favorable to him. 1 Stark. Ev. pt. 2, § 27; 3 Burrows, 1214. But it does not follow that, on re-examination, the plaintiff could bring out evidence of other statements, also favorable to him, and inadmissible in chief, simply because they were a part of the same conversation.

The object of a re-examination is to explain the facts stated by the witness on cross-examination. 3 Stark. Ev. pt. 4, p. 1751.

The question propounded and objected to asked for no explanation; nor did the statements which the witness had made require one, either to clear up any ambiguity or obscurity as to its meaning, or to prevent it from operating injuriously to plaintiff.

Even if the cross-examination had elicited statements made by Mills, which as admissions would have been evidence against the plaintiff, the witness could not on re-examination have been permitted to testify to any other statements not in some way connected with those drawn out on cross-examination. 1 Greenl. Ev. § 467.

The statements drawn out on cross-examination being per se inadmissible as evidence for plaintiff, although they were not to be withdrawn from the jury, still, while plaintiff may re-examine as to them, he can only do so so far as to explain what may require explanation. He cannot make further evidence for himself in the same direction. 1 Greenl. Ev. § 468, relied on by plaintiff, does not support his position. The illustration there given is of a re-examination directed to show the true character of what had been brought out on cross-examination, and what would give a wrong impression if left unexplained, and one which might be injurious to the plaintiff.

One Pattridge, a witness called by the defendants, testified that he was in partnership with Mills from November, 1867, to May 18, 1868, being about a year and two months prior to the sale to plaintiff; that Mills was then embarrassed; that just before the dissolution, on application made by him to plaintiff for his assistance in bringing such dissolution about, he told plaintiff, among other things, that Mills was heavily in debt, and owed more than witness feared he would be able to pay. Plaintiff being recalled, was asked: "What did Mills say to you, if anything, as to the sufficiency of his accounts to pay his debts at the time of the dissolution of the partnership of Pattridge & Mills?" and was allowed to answer, against defendant's objection, as follows: "After the change was made, and Pattridge got out of the store his part, Mills said he had notes and accounts enough to pay his debts, and if Pattridge could swing his part, he was smarter than he thought he was." This, the plaintiff says, is a denial of Pattridge's statement, and admissible; (1) as part of one transaction; (2) as rebuttal.

The conversation sworn to by Pattridge was, however, a private one between plaintiff and himself before the dissolution, while Mills' statement was after the dissolution, after the firm property had been divided, and Pattridge had taken away his share. There is therefore no ground for saying that it was part of the same transaction; nor is there anything to show that Mills knew what Pattridge had so told the plaintiff, or that his statement was intended as a denial thereof. If it had been, it would not have been admissible as rebutting evidence.

Pattridge had sworn that Mills was in debt, and that he had told plaintiff so. This might be rebutted by proving either that Mills was not indebted, or that Pattridge did not so state. That Mills said he was solvent, was not evidence to prove that he was, and of course had no tendency to show that Pattridge had not told plaintiff to the contrary, nor could it be competent in rebuttal of the defendants' case generally. That, as we have seen, was that the sale to plaintiff in 1869 was made with a fraudulent intent, and that plaintiff knew it. It would not be contended that Mills' solvency in 1869 could be proved by showing that he told plaintiff in 1868 that he was then insolvent. No more would such a statement tend to prove that if insolvent at the time of the sale, the plaintiff, nevertheless, was ignorant of that fact.

If the plaintiff's theory be that whereas Pattridge's statement might be supposed to have impressed plaintiff's mind with a belief that Mills was insolvent, that therefore evidence of Mill's statement would be competent to show that such impression had been or might have been removed, the answer is that the question here, as we shall have occasion to consider more fully hereafter, is not what might, in point of fact, have been plaintiff's belief as to Mills' intent in selling out to him, but whether he had notice of that intent.

Suppose it had been proved that the day before, or the week before, this sale, Mills had disclosed the true state of his affairs and his insolvency to the plaintiff. Who would contend that the plaintiff could rebut such evidence by proof that, nevertheless, Mills accompanied his offer to sell out to him, by the assertion that he had been mistaken in his former statement, and that he was really solvent?

Yet, as a matter of fact, plaintiff might have believed that it was so, and so believing, have made the purchase without inquiry as to how the fact was. In answer to the following questions: (1) "In making the purchase of these goods, had you any intention to defraud any creditors of Mills?" (2) "Did you, in making the purchase of Mills of this property, intend to hinder, delay, or defraud his creditors?" The plaintiff was allowed, the defendants objecting, to state as follows: "I did not intend to defraud anybody."

The plaintiff relies on the decision in Seymour v. Wilson, 14 N. Y. 567, viz., that on an issue of fact as to whether an assignment or tranfer of property was made to hinder, delay, or defraud creditors, it is competent, where the assignor is a witness, to inquire of him, whether in making the assignment or transfer he intended to delay or defraud his creditors. This case has been followed in New York. In Thurston v. Cornell, 38 N. Y. 281, the court of appeals say that it is now well settled under the rules admitting parties to testify in their own behalf, that where the character of the transaction depends upon the intent of the party, it is competent when that party is a witness, to inquire of him what his intention was.

A very recent case, however, in that court denies the correctness in principle of such a doctrine. "Were we," it is said, "without any direct authority in this court adjudging the admissibility of such an inquiry, I should be very unwilling now to concede it." Cortland County v. Herkimer County, 44 N. Y. 22. The majority of this court would be unwilling to concede it were the question before us. Filley v. Register, 4 Minn. 405, (Gil. 296.)

But the evidence now under consideration does not fall within the rule.

Here, as in all other cases of such alleged fraudulent transfers, there are two questions for the jury: (1) Whether the transfer was...