Weil v. Silverstone

• Citation: 69 Ky. 698
• Parties: Weil & Brother v. Silverstone, & c.
• Decision Date: 01 June 1869
• Court: Kentucky Court of Appeals

69 Ky. 698

Weil & Brother v. Silverstone, & c.

Court of Appeals of Kentucky.

June 1, 1869

APPEAL FROM FULTON CIRCUIT COURT.

WILLIS R. BRADLEY, A. J. JAMES, T. N. & D. W. LINDSEY, For Appellants,

CITED

1 Story's Equity, sec. 623 1 Str. 505, Armory v. Dalamirie

15 Vesey, 432, Lupton v. White 2 Vesey & B. 265

2 Blackstone, 405. 2 Kent, 365.

2 Johnson's Chancery??, Hart v. Ten Eyck.

ROULHAC & LOUDERDALE, RANDLE & TYLER, For Appellees.

OPINION

HARDIN JUDGE:

The judgment for revision on this appeal was rendered upon the finding of a jury, for the defendants, in several consolidated actions, prosecuted by the appellants on demands against Isaac Lipman, with attachments, under which they sought to subject to their debts a stock of dry goods which were claimed by the appellee J. Silverstone, whose asserted claim presented the principal issue tried by the jury.

It is not controverted that Lipman at one time owned a stock of goods at Hickman, Kentucky, where he was engaged in merchandising, and sold, or pretended to sell, his goods to Silverstone, who removed them to St. Louis, and mixed them with other goods he had in a store for sale there; and that shortly afterward he removed all the goods remaining in his store in St. Louis to Hickman, and with them commenced business as a retail merchant, in the same store-house which was formerly occupied by Lipman, who resumed business in the store really or ostensibly as the clerk and salesman of Silverstone, and the business was so continued for several months in the name of Silverstone, who in the mean time replenished the stock on hand by the addition of some new goods, when the business being suspended and the goods boxed up for removal, they were levied upon under an attachment in one of these actions.

The bill of exceptions contains a mass of testimony which was adduced on the trial, orally and by depositions, on the question of ownership of the goods, on which, under proper instructions, it was the province of the jury to find whether the goods taken under the attachment were the property of Lipman or Silverstone; and without collecting the facts minutely, or intimating an opinion as to the preponderance of the evidence, it is deemed sufficient to say that we could not reverse the judgment on the ground that there was not sufficient evidence to sustain the verdict of the jury.

But the appellants complain of several rulings of the court which involve interesting and important questions, on which the correctness of the judgment must depend. The first of these rulings which we will consider is the refusal of the court to permit the appellants to read as evidence the deposition of Lipman, which had been taken upon examination of Silverstone and cross-examination of appellants, and filed in the cause, but which Silverstone declined to read as evidence when the appellants offered to do so. It is a general rule, heretofore recognized by this court, that while the vendor of property is a competent witness to prove title in his vendee, he is incompetent as a witness for " his levying creditor who offers him on the assumed ground of fraud." (Smead, & c. v. Williamson, 16 B. Mon. 492.) But although Lipman was not a competent witness for the appellants, if at first introduced by them, the objection to his competency was waived by the act of Silverstone in making him a witness in the cause. Having examined him himself, the adverse party became entitled to do so also; and he should not have been allowed to experiment on his rights by taking the deposition; and on finding it unfavorable to him reject it as incompetent testimony against him. (3 Greenleaf on Evidence, sec. 326.) The court therefore erred in refusing to allow the deposition to be read.

It is further objected for the appellants that, with reference to the evidence conducing to prove the purchase of Silverstone of the goods of Lipman to have been fictitious and fraudulent, and that to prevent identification of these goods Silverstone wrongfully mixed and confused them with others which belonged to him, the court erred both in instructing the jury at the instance of Silverstone, and in refusing to give an instruction asked by the appellants. The instruction so given is as follows:

" The court instructs the jury that none of the goods of de

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