Hislop v. Hoover
| Decision Date | 31 January 1873 |
| Citation | 68 N.C. 141 |
| Court | North Carolina Supreme Court |
| Parties | JOSEPH H. HISLOP v. S. S. HOOVER. |
A promise to pay certain debts by the purchaser of goods, which the owner of the goods at the time owed, is a sufficient consideration to support the sale, if the contract was bona fide made, notwithstanding the purchaser, when the contract was entered into, was an infant and without means.
An insolvent debtor, in a deed made by him, may prefer one creditor to another, if he does it bona fide and with no frauulent intention. Such a preference being fraudulent and void only in case, proceedings to have the debtor adjudicated a bankrupt, are commenced within six months afterwards.
To allow a witness, after objection, to give a history of how he became indebted to a party in a suit, when such indebtedness had no relation to the point in issue, is error, and is a proper ground for a new trial.
( Lewis v. Sloan, decided at this Term, cited and approved.)
CIVIL ACTION, tried before Henry, J., at the January (Special Term, 1872, of the Superior Court of MECKLENBURG county.
In his complaint, the plaintiff alleged that he was in possession of a stock of goods on and before the 19th February, 1869, which were in store at Grier's storehouse, consisting of a general assortment of the value of about $1,200. That the defendant unlawfully took the goods, carried them away and still detains them.
The defendant denies the allegation contained in the complaint, and makes this statement in regard to the matter now in controversy. That the goods in question were the property of one Gallant, who had been selling goods in the same store for some years past, and that the plaintiff was his clerk. That Gallant owed him, the defendant, about $330; and to avoid paying this debt, made a fraudulent and pretended sale of the goods to the plaintiff, who was without means, and in fact no sufficient consideration whatever passed between the plaintiff and Gallant, and that the whole transaction was a sham and a fraud. That he, the defendant, sued out a writ of attachment, levied the same upon the goods in question and that the sheriff still has possession of them, the estimated value of the same being about $600.
For the plaintiff, J. F. Gallant testified: that plaintiff had been his clerk, and was a young man of business habits but of no means; that previous to the sale, they had agreed upon the price of the stock, and that the plaintiff went to Charlotte on one or two occasions for the avowed purpose of raising the money to pay for them; in this he failed, when finally he, the witness, sold the same to the plaintiff on the 23d of January, 1869, for $703.45, and in payment thereof, the plaintiff was to lift certain debts owing by witness, amounting to $703.48. The goods were sold at cost, 15 per cent. off, which was a fair price, the stock being old and broken. The witness further stated, that he and the plaintiff saw his creditors, who agreed to receive the plaintiff's note endorsed by himself, for the amount owing to them; that this arrangement, or most of it, took place before the sale was perfected. That no money passed between the parties, but that a small portion of the debts above alluded to had been paid before the seizure. He further stated, that the plaintiff had purchased $200 or $300 worth of goods in addition to those purchased from him, and had sold about $100 worth before the said seizure; these goods were taken by defendant with the original stock. That the sale to plaintiff was absolute, and he, himself, retained no control over the goods, or any right to see that the proceeds were applied on the debts which plaintiff had assumed for him. He also testified that he was indebted far beyond his ability to pay, and that his homestead and personal property exemption had been allotted to him.
The witness, Gallant, was then, after objection by defendant, permitted to give a history of his indebtedness to the defendant; that his note was given to defendant for borrowed money, borrowed at 15 per cent., an usurious rate of interest, &c.
Evidence was also offered tending to show that a small portion of Gallant's debts had been paid by plaintiff, and also as to the value of the goods, &c.
For the defendants, one Lyttle testified: that he was the officer who seized the goods; that when he made the seizure the plaintiff objected to his taking those he had bought since the purchase from Gallant, but did not say much against his taking the others; that Gallant's personal property was laid off to him before the goods were sold, and a part of those seized had been returned to make up the amount allotted to him. That the property was seized under an attachment, regularly issued from Mecklenburg Superior Court, in favor of defendant, as a creditor of Gallant.
His Honor charged the jury that they should enquire: Was the sale by Gallant to Hislop a bona fide transaction? Or was it a simple transfer to carry on the business in the name of a new man? If it was a sham trade done with a view to fraudulently defeat the legitimate purposes declared at the time, viz: the honest payment of his debts, then it was void. That a man had a right to prefer his creditors in the payment of his debts, provided he does it in sincerity, and the debts are real and bona fide due. In other words, is this transaction an honest attempt to pay as far as his means will go, to...
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