Kyle v. Ward

• Decision Date: 26 January 1887
• Court: Alabama Supreme Court
• Parties: KYLE, Adm'r, v. WARD.

1 So. 468

81 Ala. 120

KYLE, Adm'r, v. WARD.

Supreme Court of Alabama

January 26, 1887

Appeal from circuit court, Jefferson county.

Action of trover for merchandise.

This is an action of trover brought by the original vendor, Ward against King, his vendee, and Morris, the subpurchaser, for the conversion of certain merchandise. King died pending suit, and Kyle became his administrator. The questions passed on by the court were presented by exceptions to the charges given and refused. At the request of the plaintiff the court charged as follows: "(2) If the jury believe from the evidence that the purchase by King of the goods, for the conversion of which this suit is brought, was fraudulent then the burden of proof is on the defendant Morris to show that he is an innocent purchaser without notice." "(7) If the jury believe from the evidence that King, in making the sale to Morris, intended to hinder, delay, or defraud his creditors, and that the facts and circumstances in evidence attending the sale were naturally and justly calculated to awaken suspicion in the mind of a man of ordinary care and prudence of such intent of King, then the defendant Morris had notice of such intent, and such notice renders such sale fraudulent and void." "(9) It is not necessary that Morris should have known the insolvency of King. If he suspected that he was insolvent, and reasonable inquiry would have led to a discovery of his insolvency, then Morris is charged with notice of his insolvency."

The following charge requested by the defendants the court refused to give: "Before plaintiff can maintain this action he must show by proof that the purchase by King from plaintiff was a fraud, and that the purchase by Morris from King was a fraud; and, if either of said purchases be found to have been made honestly and in good faith, the plaintiff cannot recover against Morris."

Judgment was rendered for plaintiff.

Lane, Taliaferro & Tabor, Hewitt, Walker & Porter, and R. H. Pearson, for appellants.

J M. Weatherly, contra.

SOMERVILLE J.

The action is one of trover for the conversion of a stock of merchandise, brought by the original vendor against a subpurchaser from the first alleged fraudulent vendee. We have held that in cases of this nature the order and onus of proof is as follows: (1) The plaintiff, in first instance, is required to prove that the first vendee, being insolvent, obtained the goods on credit, by misrepresentation, or by fraudulent concealment of his financial status, with no intention or reasonable expectation of paying for them. Loeb v. Flash, 65 Ala. 526; McCormick v. Joseph, 77 Ala. 236. (2) When this proof is made by the plaintiff, it is then incumbent on the defendant, as subpurchaser, to show that he paid value for the goods. Spira v. Hornthall, 77 Ala. 137. (3) The onus is then again shifted on the plaintiff, or original vendor, to prove that the defendant or subpurchaser had notice of the fraud when he made his purchase, or before he paid the purchase money. Roswald v. Imbs, 78 Ala. 315; Spira v. Hornthall, supra; First Nat. Bank v. Dawson, 78 Ala. 67; Craft v. Russell, 67 Ala. 9.

The second charge given by the court on request of the plaintiff conflicted with the latter principle, in requiring the defendant to prove that he was an innocent purchaser without notice. It was sufficient for the defendant to prove that he paid value; and, when this was done, the onus was on the plaintiff to show that the defendant was charged with notice of the fraud,-not on the defendant to show that he did not have notice.

2. It is very clear that the plaintiff cannot maintain his action in this case unless the jury are reasonably satisfied from the evidence that both of the purchases involved in this transaction-the one by Morris from King, as well as the one by King from the plaintiff-were fraudulent. If either King or Morris was a bona fide purchaser for value without...