Smith v. Collins

• Decision Date: 01 December 1891
• Citation: 10 So. 334,94 Ala. 394
• Parties: SMITH ET AL. v. COLLINS ET AL.
• Court: Alabama Supreme Court

10 So. 334

94 Ala. 394

SMITH ET AL. v. COLLINS ET AL.

Supreme Court of Alabama

December 1, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Collins & Griffith against J. S. Smith and others. Judgment for plaintiffs. Defendants appeal. Reversed.

This was an action of trespass brought by the appellees, Collins &amp Griffith, against the appellant J. S. Smith, as sheriff, and his bondsmen, and sought to recover damages for the alleged wrongful and unlawful levy of certain attachments against J D. Collins & Co. upon property which was, at the time of the levy, claimed by plaintiffs. The defendants pleaded the general issue and justification under the authority of said attachments which were placed in the hands of the sheriff for execution. On the trial of the cause, after the plaintiffs had announced ready for trial, two of defendant's witnesses, upon whom a subp na duces tecum had been served, asked the court not to compel them to produce certain depositions and account-books thereto annexed, which depositions had been taken in another cause pending in the chancery court. The court refused to compel the production of said depositions and books, and to this ruling the defendants duly excepted. The defendants then offered, in support of the motion to require the production of said books and depositions, to show the materiality and importance of the same as testimony in this case; but the court refused to allow this evidence, and defendants duly excepted. The court also overruled the defendants' separate motion to compel the production of the books, and the defendants duly excepted. The defendants then asked the court that the case be continued so as to allow them the opportunity to get the benefit of the testimony, but the court refused to grant the continuance, and the defendants duly excepted to said refusal. The plaintiffs then introduced evidence to show that the said J. S. Smith, at the time of the grievance complained of, was sheriff of Jefferson county, Ala., and that his co-defendants were sureties on his official bond; that said Smith, as such sheriff, by his deputy, took charge of the goods involved in this suit on the evening of December 27 1889; that he came to the store in Warrior, Ala., which had been occupied by J. D. Collins & Co., but was, at that time occupied by plaintiffs, and levied upon the goods in said store as the property of J. D. Collins & Co. under two attachment writs in his hands in favor of Carter Bros. & Co. and Henry Bernstein; that said sheriff sold the goods so levied upon, and satisfied those attachment writs and other writs of attachment which were in his hands against J. D Collins & Co. The testimony for the plaintiffs further tended to show that the goods so levied upon and removed by the sheriff had previously to such levy been sold by J. D. Collins & Co. to the plaintiffs for $4,300, which purchase price was the fair market value of the goods bought, less the value of a safe at $75, which had been charged twice in the inventory, and the value of hogs, $60, which were included in the bill of sale, but which were redelivered to J. D. Collins & Co.,-it having been agreed that the hogs should not be included in the bill of sale. Robert Collins, of the plaintiff firm, on being introduced as a witness, testified that on December 23, 1889, after some negotiations with J. D. Collins, of the firm of J. D. Collins & Co., he and one Griffith agreed upon the purchase of the stock of goods from J. D. Collins & Co., agreeing to pay him the purchase price above stated; that said sale was made according to the invoice which J. D. Collins had with him at the time of the agreement to purchase, and which was attached to the bill of sale made by J. D. Collins & Co. to the plaintiffs; that at the time of the consummation of the sale said Robert Collins paid to J. D. Collins & Co. in checks $601, and on the next day, said Collins & Griffith having gone to Warrior, the bill of sale was signed by J. A. Collins, and $1,043 of the purchase price of the goods was paid by the plaintiffs to him. The evidence for the plaintiffs further tended to show that the purchase price was paid by the cancellation of an antecedent indebtedness by J. D. Collins & Co. to Robert Collins, by cash in hand paid, by checks on certain banks, and by promissory notes; and that the transaction was in every respect bona fide, and free from collusion. The testimony for the defendants tended to controvert the bona fides of the contract between Collins & Griffith and J. D. Collins & Co., by which they pretended to purchase the latter's stock of goods. Among other evidence, the defendants introduced the president of the bank at Warrior, Ala., who testified that J. D. Collins & Co. had for a long time been customers of his bank, and deposited therein about $1,500 per month, until about the middle of October, 1889, when they ceased to make any deposits; and that said witness Davidson asked J. D. Collins why he ceased to make deposits with him, to which Collins replied "that they were getting very little money, and were putting what they got in cotton." The plaintiffs objected to this conversation with J. D. Collins, and moved to exclude it from the jury. The court sustained the motion, excluded the testimony, and the defendants duly excepted. There was much testimony introduced on the part of both plaintiffs and defendants, but it is not deemed necessary to set it out in detail.

The defendants excepted to the following part of the court's oral charge to the jury: "To render a conveyance made with intent to hinder, delay, or defraud creditors void, it is necessary that bad intent must exist on the part of the purchaser as well as the seller. It is not sufficient that property be sold with the intent on the part of the seller to injure his creditors, but, in order to render it void, both parties to the conveyance must participate in the bad intent, so that a purchaser who, without any knowledge of the intent on the part of the seller, buys property and pays for it, or pays a part and gives his notes for the remainder, is protected. The sale cannot be rendered void even at the instance of creditors who may be prejudiced thereby." The court, at the request of the plaintiffs, gave the following charges in writing: (1) "The jury are sole judges of what weight shall be given to the relationship of the parties in determining the question involved in the case. No presumption of fraud is drawn from relationship." (2) "Unless J. D. Collins & Co. were insolvent at the time of the sale, and Collins & Griffith had notice thereof, the payment of the note signed by J. D. and J. A. Collins would not render the sale fraudulent." (3) "I charge the jury that all the assets belonging to the firm of J. D. Collins & Co. were liable to the payment of the firm debts, and, as against creditors of the firm, neither of the partners could claim any of the property as exempt from the payment of debts." (4) "I charge the jury that insolvency means an insufficiency of assets to pay debts; and if the jury believe from the evidence that the assets of J. D. Collins and J. A. Collins liable to the payment of their debts on the 23d and 24th of December, 1889, exceeded in value the amount of the claims against them, then they were not insolvent at the time." (5) "Fraud must be proven like any other fact. Evidence which merely shows a suspicion of its existence is not sufficient to show its existence." (6) "Before the jury find that the plaintiffs, Collins & Griffith, were guilty of fraud in the purchase from J. D. Collins & Co., defendants must show facts and circumstances which not only cast a suspicion on the transaction, but they must show a state of facts which are not fairly and reasonably reconcilable with fair dealing and honesty of purpose; and until this is done the jury cannot find that plaintiffs were guilty of fraud." (7) "If the jury believe from the evidence that the plaintiffs, Collins & Griffith, on or about the 23d day of December, 1889, bought of J. D. Collins & Co. the stock of goods in controversy and paid therefor the agreed price, with cash, and by the transfer of a mortgage on one's self, and in the satisfaction and payment of bona fide indebtedness of J. D. and J. A. Collins, and of J. D. Collins & Co., and by a resale of the hogs described in the bill of sale, and by executing their notes for the balance; and if the jury further believe that the amount so paid in this way was a reasonable value of such goods; and that afterwards Joseph S. Smith, as sheriff, by his deputy, seized and took possession of such goods under the writs of attachment given in evidence,-then the defendants are liable to the plaintiffs for the stock of goods so seized, unless the defendants have satisfied the jury by the evidence- First, that at the time the purchase was made and closed J. D. Collins & Co. were insolvent or in embarrassed circumstances; and, second, that the plaintiffs, Collins & Griffith, at that time had actual or constructive notice that J. D. Collins & Co. were insolvent or in embarrassed circumstances. The burden of proving each of these last-named facts is upon the defendants, and the plaintiffs are entitled to a verdict, unless these facts are proven."

The defendants separately and severally excepted to each of said charges as given, and separately excepted to the court's refusal to give each of the following written charges requested by them: (1) "If the jury believe from the evidence that J. D. Collins & Co. were insolvent or in a failing condition, and that Collins & Griffith knew this, or were in possession of facts sufficient to put them on inquiry as to the financial condition of J. D. Collins & Co., the burden of proof is on the plaintiffs...