Mayer v. Wilkins

• Decision Date: 04 February 1896
• Citation: 19 So. 632,37 Fla. 244
• Parties: MAYER et al. v. WILKINS.
• Court: Florida Supreme Court

19 So. 632

37 Fla. 244

MAYER et al. v. WILKINS.

Florida Supreme Court

February 4, 1896

Appeal from circuit court, Escambia county; James F. McClellan Judge.

Trespass by Isaac Mayer and another, partners as Mayer Bros., against Joseph Wilkins. From a judgment for defendant, plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. It is the established rule of this court that a general exception to a charge will not be good, if the charge contain a single correct proposition of law applicable to the case and also that an exception to a portion of a charge must be considered in connection with the remainder on the same subject, and if the charge, taken as an entirety, is free from the objection urged, the exception to a part cannot be sustained.

2. Where a paragraph of a charge excepted to is complete in itself, presenting the case to the jury on one theory, and the paragraph contains an erroneous view of the law, as applicable to the facts, the error will not be cured by another correct paragraph in the charge, in the alternative presenting another view of the case upon which a verdict could be rendered, where it cannot be ascertained upon which view the verdict was rendered.

3. The trial judge may charge the jury as to the presumptions which the law, by settled rule, draws from given facts; but an inference of a fact, or the conclusion of the existence of a fact from some other fact or facts, is drawn by the jury.

4. In case of fraudulent mixture of goods, if they are capable of identification and separation, it devolves upon the party whose wrongful act caused the confusion to separate and identify them; and if this cannot be done, and the other party's rights be incapable otherwise of complete protection, the loss must fall upon the one fraudulently mixing the goods.

5. If personal property be bought and paid for by one person, and the title, by his direction, is conveyed to another by the vendor, creditors of the person buying the property cannot reach it by execution at law, but must seek relief in equity.

6. It is not error to refuse a charge, though correct as a legal proposition, based upon a state of facts not shown by the evidence to exist.

7. Goods purchased by one from an assignee for the benefit of creditors, with knowledge that the assignment was fraudulent as to them, are liable to be taken on execution against the assignor, but goods bought by such purchaser with money derived from those obtained from the assignee are not subject to levy under such execution.

8. The court refused the following charge, viz.: 'The party who asserts that the title did not pass by assignment, as against him, must make such proof as will establish that proposition and, if he does not, the presumption which the law indulges is that the vendee or assignee rightfully acquired possession of the property. It devolves on him who attacks the assignment to show, not merely the fraudulent intent on the part of the assignor, but also the knowledge of and participation in such fraud by the person to whom, or in whose favor, such assignment was made, in order to seize in his hands the goods so assigned.' Held, that the charge, taken as an entirety, was wrong, in that it confuses the rights of a bona fide purchaser without notice with a voluntary assignee, who does not occupy the position of an innocent purchaser for value, and has no greater rights than the assignor.

9. Held, on the facts of the case, that it was error to refuse to give the following instruction asked, viz.: 'If the goods seized were in the possession of plaintiffs at the time of seizure, it is prima facie evidence that the ownership was in them, and it devolved upon defendant to establish the contrary.'

COUNSEL John W. Malone and Mallory & Maxwell, for appellants.

John C. Avery and Blount & Blount, for appellee.

OPINION

MABBY C.J.

The suit here is trespass, commenced by appellants against appellee for an alleged wrongful seizure and sale of personal property under an execution. The declaration alleges that plaintiffs were the owners and possessed of a stock of goods, wares, and merchandise situated in a building in Pensacola, Fla., of the value of $20,000, and that the defendant wrongfully, and with force and arms, pretending to act as sheriff, took possession of the goods, and sold them, on pretense of satisfying an execution issued under a judgment obtained in the Escambia circuit court in favor of A. Adler & Co. against R. Mayer and John Ellis, partners as Mayer & Ellis, to the damage of plaintiffs in the sum of $20,000. Other counts in the declaration, alleging special damages by reason of the seizure and sale of the goods, were stricken out on motion; but, as no contention is made in this court that the action of the circuit court in striking out the counts was wrong, no reference need be made to them.

The pleas are: Not guilty; that the stock of goods did not belong to plaintiffs, but to R. Mayer & Co., and that the goods were subject to levy under the execution against said firm. The judgment was in favor of defendant, and plaintiffs appealed, which was before the adoption of the Revised Statutes.

Exceptions were taken to rulings of the court admitting testimony on behalf of defendant, but they are not relied on here. The errors assigned and insisted on in brief of counsel for appellants relate to charges given to the jury, and the refusal of the court to give certain charges requested by the plaintiffs. Appellants excepted to portions of the general charge of the court to the jury, and one portion excepted to and insisted on here as error, is as follows: 'On the other hand, if you believe from a preponderance of the evidence that in the spring of 1885 R. Mayer, of the firm of R. Mayer & Co., and of the firm of Mayer & Ellis, and in the fall of 1885, a short time before the said firms of Mayer & Ellis and R. Mayer & Co. assigned to said Ollinger, made false representations to wholesale merchants of New York and other cities as to the amount of available assets or property the said firm then owned, and as to the amount of debts they were owing, and the amount of debts due to them, and obtained a large credit upon these representations, and that the said plaintiffs had knowledge of such representations by the assignors, or of facts and circumstances connected with said assignment, that by diligent inquiry they could have ascertained the circumstances under which said assignment was made, then the court charges you that the said assignment of said firms would be fraudulent and void as to creditors, and that plaintiffs would be bound by said fraud. The title to the property so assigned would remain in said firms of R. Mayer & Co. and Mayer & Ellis.' In a paragraph immediately following the portion excepted to, the court charged as follows: 'Or if you believe, from a preponderance of the evidence before you, that the said Mayer & Ellis and R. Mayer & Co. included in their said assignment to said Ollinger in October, 1885, debts as due and owing by them to parties whom they made preferred creditors under said assignment, which were not due and owing by them in whole or in part, and that the plaintiffs were among such preferred creditors, or had notice that the debts of others preferred were not bona fide, then said assignment was void and conferred no title on said Ollinger, and a sale by him of goods formerly belonging to R. Mayer & Co., embraced in said assignment, to the plaintiffs, would confer no title upon them, the plaintiffs, and the goods would be subject to be levied upon to satisfy he said execution of Adler & Co. and others against Mayer & Ellis, and your verdict should be for the defendant.' Immediately preceding the paragraph excepted to, the court charged the jury, in effect, that if they believed from the evidence that plaintiffs, with their money, purchased the goods from the assignee of Mayer & Ellis; that R. Mayer had no interest in the purchase; and that the assignment was not made, on the part of Mayer & Ellis, to hinder or delay their creditors in collecting their debts, within the knowledge of plaintiffs,--the verdict should be in favor of plaintiffs for what the goods levied on were reasonably worth. The theory of plaintiffs' case was that the goods levied on belonged to them, and not to the defendants in the execution that was levied by the sheriff. The defendants in this execution, R. Mayer and John Ellis carried on a business at Milton, Fla., under the firm name of Mayer & Ellis, and also a business in Pensacola in the firm name of R. Mayer & Co.; and on the 28th day of October, 1884, they made an assignment of both branches of business to Joseph Ollinger, the assignment containing several preferences in favor of persons as creditors, plaintiffs being among the number. The latter claimed, and testified to that effect, that they bought from the assignee, about the first of the year 1886, eleven or twelve thousand dollars' worth of the goods assigned to Ollinger, besides some real estate, and carried on business at both places named under the firm name of Mayer Bros.; that the business at Milton was transferred to Pensacola, it having been partially burned out; and that the business at the latter-named place was going on when the levy was made, something over two years after their purchase from the assignee. It was shown that plaintiffs were in possession and claimed to own the stock of goods, when levied on, and their testimony tended to prove the goods to be worth between nineteen and twenty thousand dollars. Defendant's testimony tended to reduce this valuation. Both plaintiffs testified that they had disposed of the goods purchased from the assignee, with the exception of about $500 worth, when the...