Hudson v. Bauer Grocery Co.

• Decision Date: 30 November 1894
• Citation: 105 Ala. 200,16 So. 693
• Parties: HUDSON v. BAUER GROCERY CO.
• Court: Alabama Supreme Court

16 So. 693

105 Ala. 200

HUDSON v. BAUER GROCERY CO.

Supreme Court of Alabama

November 30, 1894

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by the Bauer Grocery Company against B. B. Hudson and George M. Hudson on April 23, 1893, for the alleged conversion by the defendants of certain goods described in the complaint which had been purchased from the plaintiff, a business corporation of St. Louis, Mo., in the latter part of March 1893, by one J. T. Harris. From a judgment for plaintiff against B. B. Hudson, and in favor of George M. Hudson, B. B Hudson appeals. Affirmed.

Part of the goods were sold on March 18, and the other part on March 26, 1892, on a credit of 30 and 60 days. The aggregate value of the goods sold was $377.46. J. T. Harris, who was conducting a small business in the city of Birmingham ordered the goods from the plaintiff by letter and by a postal card, respectively, and upon these orders they were shipped by the plaintiff to said Harris. After the goods had been shipped to said Harris, and a part of them received they were sold by Harris to B. B. Hudson. Some of the goods thus sold to B. B. Hudson were delivered from the store of J. T. Harris, and others were delivered from the cars before they were carried to Harris' store. After shipping the goods, the plaintiff, upon being informed that J. T. Harris was insolvent, and was so at the time the goods were ordered from him, disaffirmed the sale, and, through its attorney, made a written demand upon B. B. Hudson for the goods which had been delivered to him by J. T. Harris. This written demand was served upon Harris by one J. E. Haigler, at the request of the plaintiff's attorney. In the written demand for the goods, Harris was requested to turn over the goods to said Haigler, or their equivalent in money. Haigler, at the time of serving this written demand upon Hudson, was a deputy sheriff of Jefferson county. The demand was made on April 22, 1892, and, upon Harris refusing to comply therewith, the present suit was brought by the plaintiff against B. B. Hudson and George M. Hudson to recover damages for the alleged conversion of said goods. It was shown in evidence that George M. Hudson had no interest in the business of B. B. Hudson, but was only employed as a clerk. The evidence for the plaintiff tended to show that, at the time of giving the order to the plaintiff, J. T. Harris was insolvent; that his insolvency was not known to the plaintiff, but was known to B. B. Hudson at the time of the sale of the goods to him by said Harris. There was further evidence for the plaintiff that at the time of the purchase Harris did not intend to pay for the goods. The testimony for the plaintiff further tended to show, as suspicious circumstances, characterizing the transaction between Hudson and Harris as fraudulent, that said Hudson hid out some of the goods, erased the marks therefrom, and that the goods ordered by Harris were greatly more than were needed by him for the purpose of carrying on his business, and were, in fact, more than could be put in his place of business. It was also shown that the relations between Harris and Hudson were intimate; that Harris had, prior to that time, defaulted in payment of many of his debts; that his checks had been thrown out of the bank; and that he had the reputation among the trade of being insolvent. The testimony for the defendant tended to show that the goods which were received by B. B. Hudson from Harris were in payment of an antecedent debt due Hudson from Harris, and that the goods were received at their fair market value; that B.B. Hudson had sold many goods to J. T. Harris, and that he considered him good pay, and regarded him as being in a solvent condition at the time of the purchase.

The court in its oral charge to the jury, among other things gave the following instructions: "(1) A man is said to be insolvent when his property cannot be made to respond to his debts. (2) A person would be in failing circumstances when his property is being placed where his creditors could not reach it. (3) If Harris bought the goods [referring to the goods in controversy] intending to pay some one else with them,and was in failing circumstances, and with no intention of paying for them, this would be a fraudulent concealment that would vitiate the trade, if he afterwards consummated that intention." The defendant separately excepted to each of these portions of the court's oral charge, and also separately excepted to the court's refusal to give each of the following written charges requested by him: "(1) If the jury believe from the evidence that Harris had, including goods bought from the plaintiff, enough property to pay all of his debts, and had not claimed same as exempt, he was not insolvent at that time. (2) If the jury believe the evidence, they will find for the defendant B. B. Hudson. (3) The court charges the jury that said Harris was not insolvent or in failing circumstances, if he had the means to pay his debts as they became due. (4) The court charges the jury that if they believe from the evidence that the sale by Harris to Hudson was for the purpose of paying an antecedent debt, due by said Harris, and was at a fair and reasonable price, without any secret trust or benefit reserved to said Harris, said sale will be upheld in law, although said Harris was insolvent, and was so known to be by said Hudson, and although the effect of the conveyance, as known by both contracting parties, would be to leave said Harris without property to pay his other debts. (5) The court charges the jury that they must find from the evidence that plaintiff, or the legally authorized agent of plaintiff, made a demand on defendant for the goods, or the proceeds thereof, within a reasonable time after the discovery of the alleged fraud, before they can find for the plaintiff, and the court charges the jury that a demand by a deputy sheriff, in his official capacity as such, would not be sufficient. (6) If the jury believe from the evidence that Harris purchased the goods from plaintiff by letter and by a postal card, and made no false or fraudulent representations to plaintiff, and if the jury further find from the evidence that upon the receipt of said orders plaintiff referred same to its local salesman or agent, and said local salesman or agent investigated the financial standing and condition of said Harris, approved said order, and returned same to plaintiff so approved, and that thereupon plaintiff shipped said goods to said Harris, the court charges the jury that a subsequent sale or transfer of said goods by Harris would not entitle plaintiff to avoid its sale made to him as aforesaid, but that the title to said goods passed to said Harris. (7) The court charges the jury that,...