Smith v. Pearson

• Decision Date: 28 October 1890
• Citation: 46 N.W. 849,44 Minn. 397
• Parties: Frederick W. Smith v. Herbert W. Pearson, Receiver
• Court: Minnesota Supreme Court

46 N.W. 849

44 Minn. 397

Frederick W. Smith v. Herbert W. Pearson, Receiver

Supreme Court of Minnesota

October 28, 1890

Appeal by defendant from an order of the district court for St Louis county, Stearns, J., presiding, refusing a new trial after verdict of $ 3,151.33 for plaintiff.

Order affirmed.

Walter Ayers, for appellant.

Wm. B Phelps, for respondent.

OPINION

Mitchell, J.

This was an action for the alleged wrongful conversion of a quantity of lumber. The plaintiff claimed the property under a bill of sale executed by the Iron Range Lumber Company in June, 1889, as security for a loan of $ 3,000, which he claims to have made to it contemporaneously with the execution of the bill of sale. The defendant claimed the property as receiver of the lumber company, appointed in July, 1889, under the provisions of section 2 of the insolvent law of 1881. (Laws 1881, c. 148.) He denied that plaintiff ever made any actual loan to the lumber company but that the whole transaction was a merely colorable and collusive one between the lumber company, the plaintiff, and the Merchants' National Bank, -- a creditor of the lumber company, -- to give the bank a preference over other creditors, both the bank and the plaintiff knowing, or having reasonable cause to believe, that the lumber company was in solvent. This was denied by the plaintiff, and the court submitted the case to the jury squarely and exclusively upon this issue. The verdict was for the plaintiff, and the principal question presented by this appeal is whether the trial court erred in denying a motion for a new trial on the ground that the verdict was not justified by the evidence, and contrary to law.

We must admit that the evidence, to our minds, makes quite a strong case in support of defendant's contention, and we might, perhaps, have been better satisfied with the verdict had it been the other way. But the evidence in favor of defendant was all circumstantial, while the plaintiff testified positively to having made an actual loan in cash to the lumber company, in good faith, and without any intimation that it was insolvent, and without any agreement, direct or otherwise, on part of the bank officers to protect him. In cases of this kind a good deal depends upon the appearance of witnesses and their manner of testifying, and their credibility is peculiarly a question for the jury. The learned judge who presided at the trial being satisfied that the verdict ought to stand, we cannot interfere.

The defendant further contends that the bill of sale, although...