Phelps, Dodge & Palmer Co. v. Samson

• Decision Date: 25 January 1901
• Citation: 113 Iowa 145,84 N.W. 1051
• Court: Iowa Supreme Court
• Parties: PHELPS, DODGE & PALMER CO. v. SAMSON, SHERIFF, ET AL.

113 Iowa 145

84 N.W. 1051

PHELPS, DODGE & PALMER CO.

v.SAMSON, SHERIFF, ET AL.

Supreme Court of Iowa.

Jan. 25, 1901.

Appeal from district court, Kossuth county; W. B. Quarton, Judge.

Action to recover the possession of specific personal property. The defendant Samson claims to hold the property as agent of two of his co-defendants, who are mortgagees thereof, holding chattel mortgages thereon executed by defendant Seiler, who purchased the same from plaintiffs. The defendants other than Samson and Seiler are the mortgagees referred to, and they plead their mortgages as prior to plaintiff's claim. Plaintiff alleges that the mortgages were without consideration, fraudulent and void, and part of a general assignment for the benefit of creditors void by reason of preferences given. It is claimed that, while plaintiff sold the goods to Seiler, the mortgagor, yet at the time of sale he (Seiler) was insolvent, and unable to pay therefor, that he fraudulently represented he was solvent and able to pay for the same, and that he purchased with intent not to pay for the property. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendants appeal. Affirmed.J. T. Sullivan and Sullivan & McMahon, for appellants.

Clarke & Cohenour and Wert Miller, for appellee.

DEEMER, J.

During the year 1897 plaintiff sold and delivered to defendant Seiler certain boots and shoes of the aggregate value of $207.60. After Seiler obtained the goods and placed them with his other stock, he mortgaged the whole to his co-defendants the Waterloo State Bank and Ed Croak, to secure a pre-existing indebtedness due each of the mortgagees. Plaintiff claims that defendant Seiler falsely and fraudulently represented that he was solvent and able to pay for the goods, whereas in truth and in fact he was insolvent; and that when he purchased he (Seiler) did not intend to pay for the goods. Seiler did not appear, and during the course of the trial judgment was rendered against him by default. The issues tendered by the other defendants have been stated with sufficient fullness, and need not be repeated. To sustain its contention, plaintiff offered several witnesses to prove the value of the stock owned by Seiler at the time he purchased the goods of plaintiff, and was also allowed to prove by these same witnesses the value of the usual and customary stock of boots and shoes kept by an exclusive boot and shoe dealer in towns the size of Whittemore, where Seiler was engaged in business. The value of the stock at the time Seiler purchased the goods of plaintiff was certainly a material inquiry, and, as each and all of the witnesses called to fix that value stated they had some knowledge thereof, their testimony was admissible. The fact that Seiler had on hand, when he made the purchase in question, a very much larger stock than the legitimate demands of trade in the locality where he was doing business would justify, was also relevant to the issue of fraud, and any proper and competent evidence tending to show that fact was admissible. The witnesses called each and all stated that they were familiar with the size of stocks usually carried in towns the size of Whittemore. Having thus qualified themselves, they were permitted to state the value thereof. In this there was no error. The fact was, as we have seen, relevant to the issue of fraud; and it could only be proven by witnesses who were familiar with such matters. It was not a matter of common knowledge. The ordinary person has little or no information on the subject. Men who are familiar with such matters do have this knowledge. It comes to them by reason of experience and observation along their particular lines of trade. Evidence as to the value of stocks usually carried in towns of a particular size is a species of opinion evidence that is admissible from the very necessities of the case. The weight of such evidence is for the jury, that at the suggestion of counsel or by direction of the court will no doubt make an allowance for mistakes of judgment on the part of the buyer, and all other facts and circumstances tending to negative the idea that the overstocking was with fraudulent intent. Evidence as to value of the stock and as to the value of the usual and ordinary stock carried in such a place was properly admitted.

2. At the conclusion of plaintiff's evidence defendants moved for a verdict. This motion was based on nine distinct grounds. They assign the overruling of the motion as error. This assignment is not sufficiently specific, and cannot, therefore, be considered. Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa, 368, 55 N. W. 496;Sisson v. Kaper, 105 Iowa, 599, 75 N. W. 490;Shakman v. Potter, 98 Iowa, 61, 66 N. W. 1045.

3. It is said that the court failed to state the issues in its charge to the jury, in that it neglected to advise them that defendants Croak and the Waterloo Bank filed separate answers. This is a hypercritical objection, entirely devoid of merit. The answers,...