Votaw v. Diehl
| Citation | 13 N.W. 757,62 Iowa 676 |
| Parties | VOTAW & HARTSHORN v. DIEHL, SHERIFF, ET AL |
| Decision Date | 30 January 1883 |
| Court | Iowa Supreme Court |
Appeal from Wright Circuit Court.
ACTION OF REPLEVIN. There was a judgment upon a verdict for plaintiffs. Defendants appeal. The facts of the case involved in the questions decided appear in the opinion.
AFFIRMED.
Brown & Carney, for appellants.
Chase & Chase, for appellees.
I.
The plaintiffs allege that they are the absolute and unqualified owners of the property in question, a stock of general merchandise, which was seized by defendants upon certain attachments issued against one H. M. Waite.
The answer shows the attachments upon which the goods were seized--all against Waite, and alleges that plaintiffs' claim upon a pretended sale of the goods, which was made with the purpose of defrauding Waite's creditors on the part of plaintiffs and Waite, as well as of one Patterson, who was connected with the transaction.
The questions in the case upon which there arises any dispute involve the good faith of plaintiffs' purchase of the goods. There is no controversy about the sale of the goods, their seizure by the plaintiffs upon the attachments, or upon other issues in the case not involving the good faith of the transaction.
We will consider the objections to the judgment in the order of their discussion in the argument of defendants' counsel.
II. Patterson testified that he bargained for the goods, and, in order to make a payment, borrowed the money of plaintiffs. To secure them, he caused Waite to execute a bill of sale to plaintiffs. This was done for the reason that Patterson had not then the possession of the goods. This evidence, so far as it shows that the bill of sale was intended as a security was objected to by defendants, on the ground that it tended to contradict the bill of sale, which is absolute in its terms. We think the objection was correctly overruled. It is competent to show that a sale, absolute in its terms, is intended as security for a debt. This is always the case when rights under the sale are brought in question. The title of the goods under the bill of sale was involved in the action and its true character should be established in order to determine the rights of the parties affected thereby.
III. The witness, Patterson, was asked upon his cross-examination by defendants, to state a conversation he had with one Humphrey, an attorney, who held for collection a claim against Waite. The court sustained an objection to the question made by plaintiffs. This ruling is complained of by counsel for defendants. The abstract fails to show the facts sought to be elicited by the question. To enable us to determine whether the proposed evidence is competent, we should be advised of its character and the facts which defendants claimed would have been established by it. Jenks v. Knotts Mexican Silver Mining Co., 58 Iowa 549, 12 N.W. 588.
IV. Plaintiffs objected to evidence given by the witness Humphrey, of a conversation which he had with the deputy sheriff about the time the goods were seized. The objection was sustained. The record does not disclose the conversation, nor the facts proposed to be established thereby. The ruling cannot be reviewed, for the reasons given in the preceding point.
V. Complaint is made that the circuit court erroneously excluded the evidence of one McKay, touching reports he had from commercial men of Waite's financial condition. The abstract does not show the rulings complained of, nor the offer to introduce the evidence of McKay, as claimed in the argument of counsel.
VI. The refusal of the court to give to the jury certain instructions requested by defendants is complained of by defendants. These instructions direct the attention of the jury to facts and circumstances regarded by the law as badges of fraud. They also inform the jury that knowledge of fraud by plaintiffs, or of facts and circumstances casting suspicion upon the transaction, which were sufficient to prompt a prudent man to inquiry that would have resulted in the discovery of fraud, if shown, defeats the sale. The same rules were in substance announced in the instructions given to the jury.
VII. The instructions given to the jury are expressions of the law quite favorable to defendants. We discover no just ground of complaint against them. Their scope and character are indicated by what we have said in the preceding point.
VIII. The evidence sufficiently supports the verdict. While it cannot be doubted that the sale was made under very suspicious circumstances, which tended to establish fraud on the part of all concerned, yet it was the peculiar province of the jury to weigh these circumstances with other facts proved. We are not prepared to hold that the jury, in the exercise of their unbiased and intelligent discretion, could not have found for plaintiffs. This we would be required to do to authorize us to decide that their verdict should have been set aside by the court below.
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