Hedrick v. Strauss

• Decision Date: 08 November 1894
• Citation: 42 Neb. 485,60 N.W. 928
• Parties: HEDRICK v. STRAUSS ET AL.
• Court: Nebraska Supreme Court

42 Neb. 485

60 N.W. 928

HEDRICK

v.STRAUSS ET AL.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. Instructions will not be reviewed where they are not pointed out in both the motion for a new trial and the petition in error.

2. A purchase of property of an insolvent debtor, with intent to aid in hindering, delaying, or defrauding his creditors, is void as to such creditors, though a full consideration is paid for the property.

3. In order to constitute one an innocent purchaser of property sold for the purpose of defrauding the creditors of the vendor, the whole consideration must be actually paid before the purchaser had notice of the fraudulent intent. If, after part of the consideration has been paid, the purchaser receives notice of the fraud, he will only be entitled to protection to the extent of the consideration paid or parted with before notice. As to the purchase price not paid, such vendee will not be regarded as an innocent purchaser of the property.

4. Held, the defendants' third instruction was applicable to the evidence in the case, and that the trial court did not err in giving the same to the jury.

5. Certain paragraphs of the charge of the court not considered, since the alleged errors in their giving are not sufficiently assigned in either the motion for a new trial or the petition in error.

6. In order to a review of instructions by the appellate court, an exception must have been taken to each specific instruction claimed to be erroneous. A general exception to instructions given or refused is unavailing.

7. It is within the sound discretion of the trial judge to submit to or withhold from the jury questions for special findings, and his rulings in that regard will not be disturbed unless a clear case of abuse of discretion appears. Rule applied.

8. This court will not consider objections to the admission of testimony when the particular ruling is not pointed out in the petition in error.

9. An assignment of error not included in the points relied on for a reversal will be deemed waived.

Error to district court, Hitchcock county; Cochran, Judge.

Action by W. A. Hedrick against Strauss, Uhlman & Guthman, in replevin. Judgment for defendants, and plaintiff brings error. Affirmed.

House & Blackledge and B. G. Burbank, for plaintiff in error.

C. C. Flansburg, for defendants in error, cited, on the question of notice: Dougherty v. Cooper, 77 Mo. 532;Arnholt v. Hartwig, 73 Mo. 485;Bishop v. Schneider, 46 Mo. 472; Starin v. Kelly, 36 N. Y. Super. Ct. 366.

NORVAL, C. J.

This was an action in replevin brought by plaintiff in error against Thomas H. Britten, sheriff of Hitchcock county, to recover possession of a stock of general merchandise formerly owned by one E. O. Johnson. At the time the order of replevin was issued and served, the stock of goods in dispute was held by the sheriff by virtue of a writ of attachment sued out of the district court of said county by Strauss, Uhlman & Guthman against the said E. O. Johnson. On motion of said Strauss, Uhlman & Guthman, they were substituted, by order of the court, as defendants in the replevin suit, in lieu of the sheriff. Upon the trial of the latter case the jury returned a verdict finding that the defendants were entitled to the possession of the goods at the commencement of the action, and that the value of such possession is the sum of $878.09. Nominal damages were assessed for the detention of the property. A motion for a new trial was filed by the plaintiff, which was overruled, and judgment was entered by the court upon the verdict for the defendants.

It is undisputed that the property in controversy herein was on and prior to the 28th day of April, 1890, owned by E. O. Johnson, who was engaged in the general retail merchandise business at Stratton, in Hitchcock county, and on which date his indebtedness to wholesale houses and others aggregated between $4,000 and $5,000. The amount which he owed the defendants was $850 and interest. On the date aforesaid, Johnson transferred his entire stock of goods to the plaintiff, and a few days later said attachment was levied thereon. The theory of the defendants is that said transfer to plaintiff was colorable merely, made for the purpose and with the intent of hindering, delaying, and defrauding the defendants and other creditors of Johnson, and that plaintiff was a party to the fraud. On the other hand, the plaintiff insists that he purchased the stock in good faith, for a valuable consideration, without notice.

Complaint is made by counsel, in the brief of plaintiff, of the giving of instructions 1, 2, 3, 4, and 5 asked by the defendants, which are as follows: “(1) The court instructs the jury that a conveyance or sale of property, made with intent on the part of the vendor to delay, hinder, or defraud a particular creditor in the collection of his debt, is void as against all creditors of the vendor, if the intent be known to or participated in by the vendee, although made for a good and valuable consideration. (2) The jury are further instructed that if they find from the evidence that the plaintiff herein, W. A. Hedrick, knew at the time he purchased the stock of goods from E. O. Johnson that said Johnson had a fraudulent purpose for making the sale, and bought with that knowledge, then said Hedrick is not a purchaser in good faith; and if you find said sale was made by said Johnson for the purpose of hindering and delaying or defrauding his creditors, and that said Hedrick had knowledge of the facts and circumstances from which such fraudulent intent and purpose might reasonably and naturally be inferred by an ordinarily cautious person, then such transfer is fraudulent and void as against the rights of the creditors, and you will find for the defendants. (3) The court instructs the jury that the intent to defraud is something distinct from mere intent to delay. And if the jury find from the evidence that said Johnson had no intent to defraud, but that he made the transfer as a shift merely to gain time in which to pay his debts, yet if the effect of said transfer would necessarily be to delay and hinder creditors in collecting their debts, and plaintiff knew, or was in possession of facts which, upon inquiry, would have given him full knowledge of, the effect of said transfer on the rights of creditors, then said sale to plaintiff was void as to creditors, and you will find for the defendants. (4) The court instructs the jury that although they may find from the evidence that plaintiff gave to said Johnson the full value of the stock, in trade and land, yet if they find from the evidence that a portion of said payment made by said Hedrick was two notes of said Hedrick for the sum of $1,500 each, and at the time of making the trade, and as a part of the consideration thereof, it was secretly agreed that the notes should not be transferred by said Johnson, but that he should hold them, and receive his pay thereon out of the store, or in trade, as Hedrick becomes ready to pay, this, the court instructs you, being an advantage to the debtor, is denominated by the law a ‘secret trust,’ and would render the sale void as to the creditors of said Johnson; and you will, if you so find, render your verdict for the defendants. (5) The court instructs the jury that a purchaser of an entire stock of goods cannot close his eyes to the circumstances under which he purchases the stock, and the probable effect the means of payment will have upon the creditors of the seller in hindering, delaying, or defrauding them of their claims, and if the effect of such sale will be to hinder and delay, if not to defraud, such creditors, he buys at his peril; and if you find that the plaintiff herein knew, or had reason to believe, that the effect of his alleged purchase would be to hinder and delay, if not to defraud, the creditors of E. O. Johnson, the seller, he is not a bona fide purchaser, and you will find for the defendants.”

Objections to instructions cannot be raised for the first time in the supreme court; but in order to have instructions reviewed, the attention of the trial court must have been challenged thereto in the motion for a new trial. The first and second instructions, therefore, will not be considered, since no complaint was made of either of them in the motion for a new trial, nor in the petition in error.

No claim is made in the brief filed that the third instruction given at the request of the defendants is incorrect as an abstract legal proposition; but the contention here is that it is not based upon any evidence in the case, and...