Hessing v. Mccloskey

• Citation: 37 Ill. 341,1865 WL 2830
• Parties: ANTHONY C. HESSINGv.MARY O. MCCLOSKEY.
• Decision Date: 30 April 1865
• Court: Supreme Court of Illinois

37 Ill. 341

1865 WL 2830 (Ill.)

ANTHONY C. HESSING

v.MARY O. MCCLOSKEY.

Supreme Court of Illinois.

April Term, 1865.

APPEAL from the Superior Court of Chicago.

This was an action of trespass brought by Mary O. McCloskey against A. C. Hessing. The defendant justified as sheriff under certain executions and attachments against Cyrus M. Bellamy. The question involved was whether Bellamy had sold and delivered the goods in good faith to the plaintiff before the writs were issued. The case turned upon the instructions given and refused by the court below, which were as follows:

Given for the plaintiff and excepted to by defendant.

Although the jury may believe, from the evidence, that the possession of the goods at McGregor, Iowa, was in Cyrus M. Bellamy, and not in the possession of George T. Bellamy, as the agent of the plaintiff, yet the right of recovery for these goods being in Chicago is not necessarily thereby affected, and if the jury believe, from the evidence, that the sale in New York was a fair one, and the possession of the goods in Chicago was in the plaintiff, or her agent, then in that case, the plaintiff might recover for these goods in Chicago, although she might not have been enabled to have recovered had she sued for a seizure of the goods at McGregor.

The following were asked for by defendant, refused, and exception taken.

That every grant or conveyance of goods and chattels, by writing or otherwise, had or made or continued to the intent or purpose to delay or prevent creditors from reaching the goods and chattels in satisfaction of their lawful debts, is absolutely void.

If the jury believe, from the evidence, that the arrangement of the transfer in question was entered into by the plaintiff and Cyrus M. Bellamy, to enable him to remove the goods from New York to Iowa, to prevent his creditors from reaching the same, then the jury will find a verdict for the defendant.

If the jury believe, from the evidence, that the transfer of the goods by Cyrus M. Bellamy to the plaintiff, was made under cover of the plaintiff's claim and judgment, to enable him to remove the goods from New York, out of the reach of the creditors of T. Bellamy & Son, to prevent creditors reaching them, then the transfer is absolutely void; although the plaintiff may have had a bona fide debt and judgment against Cyrus M. Bellamy, and your verdict will be for the defendant.

The jury are instructed as matter of law, that if they believe, from the evidence, that the plaintiff had a bona fide debt against Cyrus M. Bellamy, and used it, or allowed it to be used to cover the goods in question, to enable Cyrus M. Bellamy to remove the goods from New York city, to be used for the benefit in any way, or to prevent his creditors from reaching the same in satisfaction of their debts, then the transfer is absolutely void, and the jury will find for the defendant.

The jury are instructed as matter of law, that if they believe from the evidence, that Thomas Bellamy transferred his interest in the goods of Cyrus M. Bellamy, that he was to pay the company debts first, that the five thousand dollars had by Thomas Bellamy, in 1859, of the plaintiff, was to be capital at the risk of the business; then the giving of a note by Cyrus M. Bellamy to plaintiff, on December 10, 1860, for that amount, and interest, and allowing a suit to be instituted by the plaintiff immediately upon that note, against him, without notice to his creditors; then such facts raise a strong presumption of fraud in the whole transaction.

The jury are instructed as matter of law, that it is not necessary that there should be positive proof of fraud; that fraud may be presumed from facts and circumstances proved in the case, and if the jury believe, from the evidence, that the transfer was made with the intent to hinder or delay the creditors in the collection of their debts against T. Bellamy & Son, or to enable Cyrus M. Bellamy to appropriate the goods, or any part of them, to his use after the transfer, to the injury of his creditors, then the transaction is void, and the jury will find for the defendant.

The jury are instructed, that if they believe, from the evidence in this case, that at the time of the sale of the goods in controversy was made by Cyrus M. Bellamy to the plaintiff, the said Bellamy was involved in debt, and that the plaintiff, or her agent or agents knew it, and that such sale was made by the parties thereto, for the purpose of enabling the said Bellamy to control said goods, and have the benefits thereof, so that his creditors could not reach the same, then the sale is void, and the plaintiff cannot recover.

The jury are instructed that the intent of the parties to the sale of the goods in controversy from Cyrus M. Bellamy to the plaintiff, may be determined from the acts of the parties thereto, both before and after such sale; and if the jury believe, from the evidence in the case, that the sum of $5,000 was advanced by plaintiff to Thomas Bellamy for the purpose of being used by him as capital at the risk of his business, that Thomas Bellamy and Cyrus M. Bellamy, during the time they were in business together, contracted debts which were owing by said firm at the time the sale was made to plaintiff, that she, or her agents, knew of such indebtedness, that Cyrus M. Bellamy, a short time after his purchase from his father, went West with the intention of finding a location to which he could transfer his business, and that plaintiff, or her agent, knew that fact, that said Bellamy made arrangements for going into business at McGregor's Landing, Iowa, and then returned to New York, that immediately after his return the sale was made, and upon his advice the goods were immediately after the sale shipped to McGregor's Landing, to the care of George M. Counts, that Bellamy individually afterwards wrote said Counts advising him that the goods had been shipped to him and requesting him to rent a store, that said Bellamy afterwards went to McGregor, paid the freight on said goods, put them in the store and exercised acts of ownership and control of them, that he finally negotiated and effected a sale of said stock of goods, and has since, with his brother, been using the avails thereof, with the consent of the plaintiff, and that she has never been paid over said avails, and has never demanded the same, then the jury would have the right to consider such facts as badges of fraud in determining whether the purpose of the sale from Bellamy to plaintiff was to enable Bellamy to control the property and keep the same beyond the use of creditors.

The following instruction was given by the court on its own motion:

The court instructs the jury that the main question in this cause is as to the honesty and good faith of the alleged transfer of the goods in question from Cyrus M. Bellamy to the plaintiff. If that sale was in good faith, for an adequate consideration for the purpose of paying a debt or debts, which he owed to her, and if the possession of the goods was delivered to her, or to Mr. Shuard, or George T. Bellamy, acting for her, by her authority, for her use, then no subsequent acts or declarations of Cyrus M. Bellamy, as to the goods that arrived at McGregor's Landing, would affect her title or right to recover for the taking of the goods in question, and therefore, if the jury believe, from the evidence, that the goods were so transferred as above mentioned, and if the jury further believe, from the evidence, that the defendant took the goods in question, under the attachments against Cyrus M. Bellamy, after such transfer and delivery, then the plaintiff is entitled to recover as damages in this action, the value of the goods at the time of such taking with interest from that time to the present, at the rate of six per cent. per annum. But if on the contrary, the jury find, from the evidence, that such transfer was not in good faith, for an adequate consideration as before mentioned, or that the possession was not delivered as before mentioned, and if the jury find, from the evidence, that the defendant, as sheriff of Cook county, Illinois, took the goods under writs of attachment against Cyrus M. Bellamy, in favor of persons who were creditors of Cyrus M. Bellamy, upon debts existing at the time of such transfer, then the plaintiff is not entitled to recover in this action.

To the giving of which by the court, the counsel for the defendant then and there excepted.

The jury found a verdict for the plaintiff, on which the court rendered judgment. The defendant brings the case to this court by appeal.

E. S. SMITH for appellant.

J. W. SMITH and J. P. ATWOOD for appellee. Mr. JUSTICE BREESE delivered the opinion of the court:

This was an action of trespass de bonis asportatis, brought in the Superior Court of Chicago by appellee against appellant.

The issues were made up on the plea of not guilty, and four special pleas, by which the defendant sought to justify the taking, by virtue of four different writs of attachment in his hands as sheriff of Cook county, against the goods and chattels of Thomas and Cyrus M. Bellamy.

The jury found the defendant guilty, and assessed the damages at two thousand and four hundred and seventeen 50-100 dollars, for which the court, on overruling a motion for a new trial, rendered judgment.

The controversy, therefore, is between the vendee and the creditors of the vendor, for the value of the goods and chattels, which consisted of clothing and some piece goods.

The leading question before the court and jury was, as to the validity of the sale from Cyrus M. Bellamy to appellee. There was much testimony on the point, which is all carefully preserved, and which we have considered, and which, in our judgment, establishes the validity of the sale.

The only question, therefore, before us, is, was the case fairly submitted to the jury, by the instructions of the court?

The appellant insists it was not so...