Young v. Harris

• Decision Date: 16 February 1887
• Citation: 32 N.W. 97,4 Dakota 367
• Parties: Young and another, Copartners, etc., v. Harris.
• Court: North Dakota Supreme Court

32 N.W. 97

4 Dakota 367

Young and another, Copartners, etc., v. Harris.

Supreme Court of Territory of Dakota

February 16, 1887

Appeal from Hughes.

W. C Fawcett and E. A. Wetmore, for respondents. Dillon & Holmes for appellant.

MCCONNELL J.

This is an action in claim and delivery, to recover possession of a stock of hardware. Answer that the defendant, as sheriff of Hughes county, took the property under certain attachments against one Gary, and that the plaintiffs were fraudulent vendees of said Gary as to said property. There was a verdict for plaintiffs on all the issues, motion for new trial overruled, and judgment on the verdict. The defendant is here as appellant.

At the trial, the evidence relied on by the defendant to prove a fraudulent transfer of the property was wholly circumstantial. Its sufficiency or insufficiency, which we need not discuss here, was, of course, in the province only of the trial jury to determine. We notice certain features thereof, only in so far as may be necessary to the discussion of the assignment of errors now before us.

Gary the original vendor of said property, was indebted to one Nolan (a banker of Harold, in Hughes county, where the property was situated) in the sum of about $150, secured by chattel mortgage on the same. On the seventh of January 1885, Nolan bought of Gary the property for $800, deducting the amount of the mortgage from the purchase price, and paying the difference in cash. He took a bill of sale to himself as of that date, and on the same day sold the property to the plaintiffs for $800, assigning to them, "without recourse," on the back of said bill of sale, the property therein described, being the property in question in the case at bar. Both sales were for a lumped sum, as no inventory of the property was taken as the basis of either. Plaintiffs, in making their affidavit in claim and delivery in this action, swore that the value of the property was $1,500.

Upon the cross-examination of Leach, one of the plaintiffs, the following question was propounded: "Question. If you swore then [meaning in the making of said claim and delivery affidavit] 'that the actual value of said property, according to this affiant's best judgment and belief, is fifteen hundred dollars,' was that statement true or false?" The trial judge sustained an objection to this question, which ruling the defendant excepted to, and which he assigns as error. The ruling was not incorrect. The witness had previously stated in his cross-examination that the property was worth $1,200 or $1,500 to plaintiffs in connection with the lumber business which they carried on; that, at the time the affidavit was made, it was worth $1,500. Obviously, then, he had already, in substance, answered the same question; had stated that, according to plaintiff's standard of value,--their expectation of working off the property in connection with their lumber business,--the affidavit was true. An answer to the excluded question would have simply been a renewed assertion of the truth of the affidavit, according to that standard. While the trial court might have permitted the question to be propounded, in the discretionary latitude often allowed in cross-examination, without error, yet its exclusion was equally without error; and certainly the trial court should not be criticised for finding it unnecessary, in the interest of justice, to see how neatly or otherwise the witness could translate the absolute, metaphysical standard of truth and falsehood assumed by the question into the relative standard applicable to every-day affairs.

To the vendor, Gary, called as a witness for the defendant, the following question was propounded in direct examination: "Question. Did you ever make any inventory of the stock of goods before you sold to Nolan?" An objection to this question, as immaterial, was sustained. This ruling is also assigned as error. We need not decide whether the evidence sought to be obtained by the question was material or not, as it appears from the appellant's transcript that the question was in fact answered by the witness,--whether directly and before the court ruled upon the question, or as an answer in part to some other question, we cannot determine. But we find the words, "I did not make any inventory of stock at time I sold;" and, as it does not appear that they were stricken out, the defendant could not have been prejudiced by the court's ruling on the question itself.

It is also assigned as error that the court below refused to give to the jury two certain instructions on the part of the defendant, which we notice separately.

The first instruction refused is as...