35 Wash. 80 | Wash. | 1904
This action was begun in June, 1898, by the respondent, J. F. Adams, to recover from the appellant O. C. Dempsey, who was the sheriff of Spokane county, and his co-appellants, who were sureties on his official bond, the value of a stock of groceries and of
The case was tried before the court and a jury. At the conclusion of the appellants’ evidence, the respondent challenged the legal sufficiency of such evidence to sustain the charge of fraud, and moved the court to discharge the jury, and enter a judgment in his favor, pursuant to the provisions of section 4994 of the Code (Ballinger’s). This motion the court denied, and afterwards submitted the question of the good faith of the mortgage to the consideration of the jury, who returned a verdict in favor of the appellants. The respondent thereafter moved the court to set aside the verdict and grant a new trial, and, on the hearing of this motion, urged anew the question
Counsel for the respective parties have discussed at length the interesting question, whether or not the trial court had power, after the return of the verdict of the jury, to review and reverse its former ruling on the sufficiency of the evidence, hut we have found it unnecessary to determine the question. This was the fifth time this case had been tried, each trial being had before a jury. On two of these trials the jury disagreed, and on three of them they found for the defendants — the present appellants. The two former verdicts in favor of the defendants were set aside by this court, on the appeal of the present respondent, because of error in the instructions of the court; 22 Wash. 284, 60 Pac. 649, 79 Am. St. 933; 29 Wash. 155, 69 Pac. 738. It is not disputed that the evidence touching the validity of the chattel mortgage was, in all of these trials, substantially the same, and that in all of them, prior to the last one, it was assumed, if not conceded, that the evidence, if believed by the jury, was sufficient to sustain a judgment in favor of the defendants. While these facts may not require a reversal of the present judgment, if it be true that the evidence is insufficient to sustain such a judgment, still it would seem that it furnished some reason for doubting the soundness of the contention that it was insufficient to sustain the verdict.
But a perusal of the evidence itself does not, to our minds, leave the question in doubt. The transaction was between brothers. The mortgage was given to secure a purported debt to a person to whom the mortgagor had
This conclusion requires a reversal of the judgment, and it becomes material to inquire what form the order remanding the cause to the lower court should take. The respondent insists that he is entitled to a new trial in any event, on the ground of the erroneous instructions given the jury. The instructions complained of are as follows:
“16 th. A debtor who is insolvent, or in failing circumstances, has no right to execute a chattel mortgage upon all of his property and surrender possession thereof to one creditor, and have a secret understanding with the mortgagee that said debtor shall secretly receive any part of said property or the proceeds thereof, so as to wrongfully deprive any other creditor thereof. And where such is the fact, such chattel mortgage is fraudulent and void.
*84 “17th. If a debtor in failing circumstances makes a transfer of all bis property, purporting upon its face to be absolute and without reservation, and at the same time there is a concealed agreement between the parties to it, inconsistent with its terms, intending to secretly secure a benefit or an advantage to the debtor at the expense of those whom he owes, such a trust thus secretly created is a fraud upon creditors.”
It is claimed that these instructions are erroneous because the trial court has no right to say “that this or that circumstance showed fraud, as a matter of law, but that all the circumstances should be submitted to the jury as evidence only.” But the respondent mistakes the rule. While it is error to say that particular acts, if proven, constitute fraud, when in fact they are only evidence of fraud, yet, if the circumstances proven do constitute fraud, it is not error for the court to so tell the jury. In other words, there are certain conditions that constitute fraud in law, whether it he the result of one or of a series of acts, and it is never error for the court to instruct the jury what these conditions are, if pertinent to the particular case. The instructions complained of here do not violate the rule. The court should have entered judgment on the verdict. The judgment is therefore reversed, and the cause remanded, with instructions to enter a judgment in accordance with the verdict of the jury.
Mount, Dunbar, Hadley, and Anders, JJ., concur.