Pettingill v. Drake
| Decision Date | 30 November 1883 |
| Citation | 14 Bradw. 424,14 Ill.App. 424 |
| Parties | BLANCHARD T. PETTINGILL ET AL.v.LUCY DRAKE. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed February 5, 1884.
Messrs. BUNN & PARK and Messrs. COOPER & TENNERY, for appellants; that where a plaintiff has evidence tending to prove his case it is error to exclude it from the jury, cited Holliday v. Burgess, 34 Ill. 193; Merricks v. Davis, 65 Ill. 319; Craig v. Peake, 22 Ill. 185; Kohl v. Lindley, 39 Ill. 195; Crowley v. Crowley, 80 Ill. 469.
Mr. W. C. JOHNS, for appellee; that the statements of an agent, when not part of the res gestæ, are not evidence, cited 1 Greenleaf on Ev., § 113, Vol. 2, § 63, note 5; Waterman v. Peet, 11 Ill. 648; Whiteside v. Margarel, 51 Ill. 507.
As to estoppel: Hunley v. Hunley, 15 Ala. 91; Reeves v. Matthews, 17 Ga. 449; Young v. Foute, 43 Ill. 33; Ray v. Bell, 24 Ill. 444; Baker v. Pratt, 15 Ill. 568; Smith v. Newton, 38 Ill. 230; Winchell v. Edwards, 57 Ill. 41; Tucker v. Conwell, 67 Ill. 552; Knoebel v. Kircher, 33 Ill. 308; Winslow v. Cooper, 104 Ill. 235.
An insolvent debtor may sell his property, and if the transaction be an honest one, in good faith, and for an adequate consideration, it matters not how many creditors may thereby be prevented from reaching the property: Erb. v. Cole, 31 Ark. 554; Wood v. Shaw, 29 Ill. 444; Miller v. Kirby, 74 Ill. 242; Bowden v. Bowden, 75 Ill. 143; Waddams v. Humphrey, 22 Ill. 661.
To impeach a sale of property as fraudulent as to creditors, it is necessary to show that both the vendor and purchaser fraudulently intended to hinder and delay creditors: Ewing v. Runkle, 20 Ill. 449; Brown v. Riley, 22 Ill. 46; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Hatch v. Jordan, 74 Ill. 414; Bowden v. Bowden, 75 Ill. 143; Meixsell v. Williamson, 35 Ill. 529; Hessing v. McCloskey, 37 Ill. 532; Herkelrath v. Stookey, 63 Ill. 487.
Even if the evidence was improperly excluded, if the verdict could not have been otherwise, a reversal will not follow: Stobie v. Dills, 62 Ill. 433; Crowley v. Crowley, 80 Ill. 469; Hazen v. Pierson, 83 Ill. 241; Caveny v. Weiller, 90 Ill. 159; Hubner v. Feige, 90 Ill. 208.
This was a suit in attachment, brought by the firm of Moses Pettingill & Co. against appellee, upon the ground that within two years preceding the filing of the affidavit she had fraudulently conveyed and assigned her effects or part thereof so as to hinder and delay her creditors. Appellee filed a plea in abatement to the writ denying the fraudulent conveyance, but suffered a default for want of a plea to the declaration. The jury assessed the damages against her at the sum of $566.30 but found in her favor upon the issue joined upon the plea in abatement, and the court rendered judgment accordingly. From this judgment the plaintiffs in the court below prayed an appeal to this court.
On the trial of the case before the jury, several witnesses were examined on the part of appellants to prove the fraudulent character of the disposition of her stock in trade by appellee, at the close of which her counsel moved to exclude all the evidence upon that issue from the jury, which motion the court sustained and directed them to find for appellee; to which ruling appellants excepted, and assigned the same for error in this court.
It is contended on the part of appellee, that as she owned no property she could not be guilty of a fraudulent disposition of any. The evidence tends very strongly to show that her husband, Peter J. Drake, was doing business in her name with her consent; that he was acting as her general agent in carrying on the store; that he contracted debts in her name for goods purchased for the store; that when sued for these debts, judgments were rendered against her, and that the bill of goods for which this suit was brought was purchased in her name. Upon that question the evidence was of such a character that a jury might properly have found her to be the owner of the goods.
It is not denied that the goods were sold to one Wait. The evidence shows that Wait was doing business in Decatur, while appellee and her husband were carrying on the business at Warrensburg; that when creditors began to press them for payment, the husband went to Decatur and endeavored to borrow money from Wait, who was already a creditor of the house in the sum of $172.07, but that he failed in obtaining the money; that thereupon Wait went to Warrensburg, and late on Saturday night, without taking any invoice of the stock, made a purchase of the entire contents of the store for the sum of $1,500, when the evidence tends strongly to show that they were worth from $2,000 to $2,500; that the $172.07 which appellee was then owing Wait was deducted from the purchase money, and Wait gave his check for $127.93, and for the balance, $1,200, he gave his note payable in nine months; that of the money so received, appellee's husband sent $100 to his mother, and that an agreement was entered into with Wait, that if any of the creditors who wanted to settle would take Wait's note at nine months, he was to give them his notes, and indorse the amount of such notes on that for $1,200, but if any refused to do so he was to pay them the cash upon appellee's request, but...
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