Slayton v. Drown

• Decision Date: 08 May 1919
• Citation: 107 A. 307,93 Vt. 290
• Parties: H. J. SLAYTON, TRUSTEE IN BANKRUPTCY v. E. A. DROWN
• Court: Vermont Supreme Court

107 A. 307

93 Vt. 290

H. J. SLAYTON, TRUSTEE IN BANKRUPTCY v. E. A. DROWN

Supreme Court of Vermont

May 8, 1919

October Term, 1918.

ACTION OF CONTRACT to recover a preference. Plea, the general issue with notice. Trial by jury at the March Term, 1918 Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and cause remanded.

A A. Sargent and John W. Gordon for the defendant.

Elwin L. Scott and Earle R. Davis for the plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES

This is an action by the trustee to recover $ 1,200, claimed to have been paid to the defendant by the bankrupt as a preference, December 9, 1916. The plaintiff recovered judgment below, and the case is brought here on numerous exceptions, numbering from one to twenty-seven, inclusive, and we take them up in the order in which they are presented in the defendant's brief.

Exceptions one to nine, inclusive, were to the testimony of the trustee which was, in substance, as follows: That the appraisers of the bankrupt estate were a Mr. Mitchell of Montpelier, proprietor of the McCuen store, and a Mr. Brooks, interested in the Homer Fitts Co. of Barre, Vt.; that their business was that of dry goods merchants, the same as that of the bankrupt; that the witness had the bankrupt stock of goods in charge on February 1, 1917; that his possession from February 1st, to the time Vaughan was declared a bankrupt on February 19th, was by virtue of two writs of attachment; that the stock was sold at private sale in bulk; that he had had stores of part dry goods and part of something else to a certain extent similar to the goods of the bankrupt estate; that he paid out of the sale $ 1,197; that he was acquainted with the bankrupt stock of goods; that from this experience he had acquired a knowledge enabling him to give a valuation of the bankrupt stock of goods; that the appraisers took an account of each article and put a price after it; that he was present during a greater part of the time the appraisers were taking the inventory; that he found no other property than that of which he took possession; that after the inventory was taken he had a copy; that he also took possession of the furniture of the store of the kind of which he had had experience; that he had had quite a good many estates where he had the same kind of goods to handle as were in the bankrupt estate; that the sale was at their fair cash value.

The main objection to much of this testimony was that it had no tendency to show that the defendant had reasonable cause to believe that the payment in question would effect a preference. This objection, no doubt, would be sound, if the evidence was offered and received for the purpose of showing that the defendant had reasonable cause to believe that the payment would effect a preference and the offered evidence had no tendency, as a link in the chain of evidence, to establish any other fact in issue and on trial.

The transcript shows that that evidence was offered and received as bearing in part, at least, upon the value of the bankrupt's stock of goods, December 9, 1916, the date of the alleged preference. This evidence without being connected with the value of the bankrupt estate December 9, 1916, would be subject to the objection made; for on February 1, 1917, the estate may have been wholly changed. In order, therefore, to make such testimony admissible, it was necessary for the plaintiff to show such connection. But there was evidence tending to show such connection. There was evidence tending to show that between December 9, 1916, and February 1, 1917, the bankrupt had sold from his stock of goods about $ 2,000 worth and had purchased during that time and added to that stock about $ 500 worth of goods, reducing the stock of goods on hand December 9, 1916, in the sum of fifteen hundred dollars, which, added to the bankrupt estate or stock of goods on hand February 1, 1917, would have a tendency to show the value of the bankrupt stock December 9, 1916. Counsel discuss at length the weight of the evidence tending to prove these facts, and reasonable minds may differ upon that matter; but the evidence was for the jury, and their finding settles that question, and its weight is not for us. The court in its charge, which was not excepted to, limited the evidence to the value of the goods December 9, 1916, and for that purpose the evidence was admissible.

There is no force in the exception to the trustee's testimony as to the appraisers. It was received to identify them as the appraisers mentioned in the record, one of whom afterwards qualified and testified to the value of the property of the bankrupt estate at the time of the appraisal.

The exception to the testimony of the trustee that he took possession of the bankrupt stock of goods February 1, 1917, is without merit. It was simply showing that he took lawful possession, and no harm was done the defendant by showing that possession was by virtue of two writs of attachment.

The exception to the trustee's testimony that he took possession of the bankrupt stock on February 1st, and continued to hold it until its sale on March 28th, and that it was sold at private sale and in bulk is not well taken. The defendant says that he objected to the evidence on the ground that the sale was in bulk. We are unable to find such ground in the transcript. The ground of the exception, as we understand it, was that the evidence did not show that the defendant had reasonable ground to believe that he was getting a preference; that the evidence did not relate back to the alleged preference; and that the judgment of the witness was not material. The grounds of objection which were in fact stated have been already disposed of and require no farther discussion. If the ground of the objection had been that the sale was in bulk, we could find no error in the reception of the evidence. The objection would be to the weight and not to its admissibility. The price at which property is sold is ordinarily admissible as evidence of value, though not conclusive, its weight being dependent upon the circumstances surrounding the sale. Crampton v. Valido Marble Co., 60 Vt. 291, 15 A. 153, 1 L.R.A. 120. See Hildreth v. Fitts, 53 Vt. 684.

The exception to the trustee's testimony that he paid out of the proceeds of the sale of the bankrupt property, $ 1,197, rests upon the objection that the evidence was immaterial. To sustain an objection on the ground of immateriality alone, it ought to so appear beyond a reasonable doubt; for it is a settled rule where the evidence is not clearly irrelevant, to allow it to go to the jury, leaving them to determine its weight. 10 R. C. L. 927, par. 88; Shannon v. Kinny, 8 Ky. 3, 10 Am. Dec. 705. In any view it was harmless.

The remaining portion of the trustee's testimony embraced in the defendant's first nine exceptions is sufficiently answered in what has already been said.

The bankrupt, called as a witness by the plaintiff, had testified without objection that he had paid certain notes which he owed the defendant, from time to time, but that there was one note that went into the Quarry Bank of Barre that was not paid. Subject to the defendant's objection and exception on the ground that the evidence had no tendency to show that the defendant had reasonable ground to believe that he was getting a preference within four months of the filing of the petition in bankruptcy, the witness testified, in substance, that he did not know as he could give the date, but at some time he made known to the defendant why he did not pay the note that went into the Barre Bank, and told him that he could not pay it at that time, but would do so later on. This was a part of the witness' testimony showing his dealings with and relation to the defendant, as a link in the chain of the evidence tending to show that the defendant knew or ought to have known that the bankrupt was insolvent when the alleged payment was made December 9, 1916, and in connection with other portions of the evidence we think it had such tendency.

Exceptions 11 and 12 raise questions already disposed of and require no further treatment.

Exception 13 was to the bankrupt's testimony that he could tell the value of his stock of goods on December 9th only by "guess." The objection was placed upon the ground that guesswork was not admissible in evidence, which is true; but the testimony, taken as a whole, shows that the witness was not guessing as to the value of his stock at that time, but was giving his best judgment as to its value. He had purchased the goods, was selling them at the time, and was the manager of the store, and it cannot be doubted but that he knew the cost and selling price of every article in his store. He was the witness of all witnesses best qualified to express an opinion of the value of those goods. A witness, who appears to have acquired some knowledge that persons in general do not have in respect of a matter in question, may properly be allowed to give his opinion in respect thereof (Griffin v. B. & M. R. R., 87 Vt. 278, 89 A. 220); besides, the evidence upon this point is more favorable to the defendant than otherwise. We find no error in the receipt of this evidence. We have treated this exception at length, not because we seriously thought it required it, but because the defendant in his oral argument asked us to specially consider it.

No exception is reserved to which defendant's 14th relates, and so requires no consideration.

In examining the transcript, on the page to which our attention is called by the defendant in his brief, we find the only exception taken...