Sonnenschein v. Bartels
| Decision Date | 20 September 1893 |
| Docket Number | 4676 |
| Parties | FREDERICK SONNENSCHEIN ET AL. v. CHARLES BARTELS ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before DOANE, J.
AFFIRMED.
J. C Crawford and Cowin & McHugh, for plaintiffs in error.
T. M Franse and M. McLaughlin, contra.
About June 30, 1888, the defendant Charles Bartels was the owner of a stock of merchandise situate at West Point, in Cuming county, Nebraska, and on this date sold it to Brazda Bros of the same place, at the invoice price of $ 11,300. Of this sum, Brazda Bros. paid Bartels, at the time of the sale, $ 3,000 cash, and gave their promissory notes for $ 8,300, secured by the personal signatures of their friends living in said Cuming county. On Saturday, March 2, 1889, Brazda Bros. made an alleged sale and delivery of this stock of goods to the plaintiffs in error, for the alleged consideration of $ 3,200 in cash, and some lands in Boone and Keya Paha counties, and some lots in in the city of Omaha. The balance of the purchase price of the goods sold to Brazda Bros. remained, at this time, unpaid to Bartels. On Monday, March 4, there were filed in the recorder's office of Cuming county mortgages made by the sureties on Brazda Bros.' notes, conveying and incumbering most, if not all, of the property of said sureties. A suit was brought by Bartels against the Brazda Bros. and the sureties who had signed their notes, on the alleged ground that the sale of the stock of goods from Brazda Bros. to the plaintiffs in error, and the mortgages made by said sureties of their property, were all fraudulent and made for the purpose of hindering, delaying, and defrauding Bartels in the collection of his debt against Brazda Bros. An attachment was issued in said action, by virtue of which the sheriff of Cuming county seized the said stock of goods. Motions to discharge the attachment were overruled, judgments rendered against the Brazda Bros. and sustaining the attachment and ordering the goods sold, and the proceeds applied on the judgment; all of which was done. Plaintiffs in error then brought this suit against Bartels, Sharpe, the sheriff of Cuming county, Mr. Franse and Mr. McLaughlin, Bartels' attorneys, alleging that they had unlawfully and wrongfully converted to their own use the said stock of goods, they then and there being the property of the plaintiffs in error.
The answer of the defendants, so far as material here, consisted: (1) Of a general denial; (2) that the sale of the goods by Brazda Bros. to the plaintiffs in error was fraudulent and made with the intent and for the purpose, on the part of both vendors and vendees, to hinder, delay, and defraud the creditors of the said Brazda Bros.; (3) that the defendants took the stock of goods under the writ of attachment in a suit brought in the district court of Cuming county by Bartels against Brazda Bros. and the said sureties on their notes.
There was a trial to a jury with a verdict and judgment for the defendants in error.
The principal point litigated on the trial in the district court was, whether the sale of the stock of goods made by Brazda Bros. to plaintiffs in error was fraudulent. The jury, by its verdict, said it was, and the first error alleged here is, that there was no evidence before the jury to support this finding. Let us see. The jury had before it evidence that Bartels and plaintiffs in error lived in the same town; were neighbors on good terms; intimately acquainted and saw each other often; that plaintiffs in error were engaged "in the real estate, loan, and mercantile brokerage business; " that plaintiffs in error negotiated or took part in negotiating the sale of the stock of goods in June, 1888, from Bartels to Brazda Bros.; that the plaintiffs in error knew at the time that Brazda Bros. gave their notes for the larger part of the purchase price, which notes were secured by the personal signatures of some men in Cuming county; that the plaintiffs in error knew on March 2, 1889, when they claimed to have purchased these goods of Brazda Bros., that Bartels' notes were unpaid; that the plaintiffs in error knew at said time that Brazda Bros. were otherwise largely indebted and in financial straits; that this sale was made without an invoice; that it was made on a Saturday night after the close of business; that it was made secretly, the employes in the store, when they left at 8 or 9 o'clock in the evening, suspecting no change; that Bartels was in the store during the day and just before it closed in the evening, but he was not advised of the sale; that it was not made in the usual course of mercantile business; that the plaintiffs in error were not then engaged, nor did they intend to engage, in mercantile pursuits; that the consideration paid by the plaintiffs in error for said stock of goods, except $ 3,200 in cash, consisted of some lands in Boone and Keya Paha counties, of a poor quality, and incumbered by mortgages to about their value, and some lots in the city of Omaha, also incumbered to about the extent of their value; that the consideration paid for said goods was disproportionate to their value; that the plaintiffs in error, on Monday morning, March 4, advertised to sell, and did sell, many of the goods at and below cost; that between the closing of business hours on Saturday night, March 2, and Monday morning, March 4, a large amount of silk goods was removed from the stock; that as early as 8 or 9 o'clock on Monday morning, March 4, following the alleged sale conveyances from the sureties on Bartels' notes of their, property were placed on file in the register's office in said Cuming county; that these sureties lived, at the time, from twelve to twenty miles from West Point, where the mortgages were executed, and that there was no railway communication between West Point and the homes of said sureties. This is a synopsis of some of the evidence tending to show that the sale from Brazda Bros. to plaintiffs in error was fraudulent.
On the other hand there was evidence that negotiations for the sale of this stock had been pending for some two weeks between Brazda Bros. and plaintiffs in error and other parties, among them one "Father Resing;" that the cash paid Brazda Bros. by plaintiffs in error was applied on a debt due from Brazda Bros. to a bank in West Point; that the sale was made in the afternoon of Saturday; that the value of the lots and lands traded for the stock, added to the cash paid, equaled or exceeded the value of the goods; that the plaintiffs in error, at the time of their purchase, had no knowledge of Brazda Bros.' indebtedness excepting the debts to Bartels and the bank; that the most of Bartels' unpaid notes were not due at the time of the sale; that the plaintiffs in error had traded lands and money for mercantile stocks before; that Bartels congratulated the plaintiffs in error, on Monday morning, over their purchase, rented them his store room for sixty days, and induced them to hire his son as a clerk. This is a synopsis of some of the evidence tending to show the good faith of the sale from Brazda Bros. to the plaintiffs in error.
Of course almost everything testified to by one side was denied by the other. There is in the case a continual conflict. The case was vehemently and persistently tried on both sides by eminent counsel, and from the record before us it appears, as is usual in such cases, one party claimed that everything done was "as pure as the snow on Diana's lap," while the other indicted the transaction "a fraud that smelled to heaven." Whatever may be the truth, one thing is certain: that the only tribunal designated by the laws of this country to hear, deliberate upon, and decide such a dispute as the one in this record is the one that did decide it, a jury. Not only did twelve jurymen hear this evidence but a learned, upright, and impartial judge presided at this inquiry. He also heard the witnesses, observed their demeanor on the stand, and to him, first, the plaintiffs in error alleged, in their motion for a new trial, the error we are now considering. Had he been of the opinion that this verdict was unsupported by the evidence, or contrary to the weight thereof, he was invested by law with the discretion and authority to set it aside. He was evidently not of that opinion, for he refused to disturb the finding of the jury. Here, then, are the judgments of thirteen men as to the weight of this evidence, men who heard and saw the witnesses. It was the special privilege as well as the duty of at least twelve of these men to weigh this evidence and to scrutinize it. This court cannot weigh evidence in a case like this. For it to do so, would be doing violence to the spirit if not the letter of our laws. The laws and constitutions of nearly all civilizations of the nineteenth century forbid the trial and determination of questions of fact by judges. When a jury has decided a disputed question of fact, and the trial judge has said by his ruling it was rightly decided, then, if the record discloses any competent evidence on which the finding may have been based, it cannot be disturbed by the supreme court, as it has no authority to scrutinize or weigh evidence in such cases. We agree...
To continue reading
Request your trial