Lowenstein v. Finney

• Decision Date: 10 January 1891
• Citation: 15 S.W. 153
• Parties: LOWENSTEIN <I>et al.</I> v. FINNEY.
• Court: Arkansas Supreme Court

Page 153

15 S.W. 153

LOWENSTEIN et al. v. FINNEY.

Supreme Court of Arkansas.

January 10, 1891.

Appeal from circuit court, Pulaski county; JOSEPH W. MARTIN, Judge.

Morris M. Cohn, for appellants. Ratcliff & Fletcher, for appellee.

HUGHES, J.

Appellants sued out an attachment, and had it levied upon a stock of goods and other property of the appellee, which appellee had before then conveyed by deed of assignment for the benefit of his creditors to R. A. Little as assignee. Before the assignee had given bond, or taken possession of the property conveyed by the assignment, and upon the day of its execution, upon the petition of the German National Bank, the largest preferred creditor of the appellee, the chancery court of Pulaski county appointed R. A. Little, the assignee, receiver, upon the representation in the petition that the assets were of such a nature that they could not be administered under the assignment laws of this state without great loss, and that it was necessary that they should be sold and disposed of at once. Pursuant to the order of the court, the receiver filed his bond, took the oath required by law, and took charge of the property. The contest below was, and in this court is, over the grounds of the attachment, which was discharged by the circuit court, from which the appeal in this case was taken. The grounds of the attachment were that, immediately preceding the issue of said attachment, W. C. Finney caused to be executed an assignment for the benefit of creditors for the fraudulent purpose of evading the laws regulating assignments for the benefit of creditors, in this: that the same was executed by the assignor for the purpose of fraudulently covering up assets which the assignment purported to convey; also because it contemplated a mode of disposition in conflict with the law relating to assignments; and because the assignor preferred a claim for the fraudulent purpose of paying for services in opposing the just demands of creditors. The circuit court found the facts to be "that the debt preferred in favor of Ratcliff & Fletcher in the assignment of Finney to Little was for legal services in preparing and perfecting the assignment, and not for future services; that the assignment was made in good faith by Finney, and there was no fraud in the same." Appellant saved all exceptions, and, after motion for new trial, which was overruled, appealed.

It is contended by counsel for appellant that the circuit court erred in permitting Finney, the appellee, after the testimony had been introduced, and the plaintiffs had presented their argument on the subject of the reservation of household goods by Finney, to testify "that he had purchased the household goods with his wife's money, and that said property was hers." On cross-examination Finney had said that he had purchased the goods and paid cash for them, and on redirect examination he said that he paid for them with his wife's money. The direct examination must be completed before the cross-examination begins, unless the court otherwise directs. Section 2899, Mansf. Dig. It was within the sound discretion of the court to allow this statement by the appellee in evidence at the time it was made, in furtherance of justice, and there was no abuse of such discretion apparent to this court. Section 5131, Mansf. Dig.; Evans v. Rudy, 34 Ark. 390.

It is contended that the circuit court erred in modifying the second declaration of law asked for by the plaintiff, which was as follows, (as modified by the court, only by the insertion of the word "intentionally:') "The assignment in this case contemplated all the property of the assignor, and, if he withheld [intentionally] from his assignee any material portion of his property, it is fraudulent as to creditors." Fraud, though never presumed, like any other fact, may be proven, by circumstances; but we do not think that the unintentional withholding by appellee from his assignee of the small amount of household goods...