45 Fla. 162 | Fla. | 1903
On May 17th, 1898, plaintiff in error sued Harry A. Henry in assumpsit, and on the same day filed affidavit in garnishment, upon which writ of garnishment was sued out and served the same day on D. H. Doig, as garnishee. On July 4th, 1898, Doig answered the writ of garnishment saying “that he is not indebted to the said defendant, nor was he so indebted at the time of service of said writ, nor at any time between'the service of said writ and filing of this answer. That he has no money, goods, chatties, credits or effects of the said defendant in his hands, possession or control, nor had he same at the time of the service of said writ, nor at any other time between the.service of said writ and the filing of this-answer, except certain property claimed by the defendant as exempt from forced sale under process of any court under the constitution of the State of Florida, he claimed to be the head of a family and residing in this State; that he knows of no other person indebted to said defendant or who may have any effects of said defendant in his hands, and said Doig, garnishee, prays to be dismissed.” the traverse was submitted to a jury who found a verdict Armour & Company traversed the answer of Doig. On December 16th, 1898, the cause upon the issues raised'on the traverse was submitted to a jury who found a verdict for the garnishee, and thereupon a judgment was entered by the Circuit Court of Duval County discharging the garnishee and dismissing the garnishment proceedings. A writ of error from this judgment was sued out to the January term, 1899, of this court.'
On the trial the ‘plaintiff introduced and read in evidence. without objection the files .and proceedings, including the final judgment, in the suit of Armour & Company v. Harry A. Henry, which was begun on May 17th,
Plaintiffs produced from the possession of D. H. Doig and offered and read in evidence the original writing executed to Doig on May 16th, 1898, by Harfy A. Henry and the record thereof, purporting to be a deed of assignment for the purpose and confining the introduction solely to the purpose of showing the date of the execution and recording thereof, and the property mentioned therein, and the property in terms excepted therefrom, the trusts created or sought to be created thereby, and the acceptance of said trusts by the said Doig, as recited therein, and to show that the trusts in terms created by said writing wei‘e not the trusts the statutes of Florida appoints and makes necessary to a valid conveyance by way of a general assignment, executed by an insolvent for the benefit of his creditors. This writing was read in evidence without .objection, and is as follows: “This indenture made this 16th day of May, A. D. 1898, between Harry A. Henry, of the city of Jacksonville, county of Duval, and State of Florida, party of the first part, and David H. Doig, of the same city, county and State, party of the second part, witnesseth, that whereas the party of the first part is indebted to divers persons in different sums of money, which he is unable to pay in full, and he .is desirous of providing for the payment of the same as far as it is in his power by an ássigmnent of all of his property for that purpose: Now, therefore, the said party of the first part in consideration of the premises and of the sum
HARRY A. HENRY, (Seal.)
DAVID H. DOIG, (Seal.)
Executed in presence of
ARTHUR F. PERRY,
G. A. CLARK.
This writing was duly acknowledged and recorded the same day in the public records of Duval county, Florida.
Attached to this writing was a separate relinquishment of dower and a release by way of conveyance of all interest to T). H. Doig as assignee, by Edna M. Henry, wife of the grantor therein, duly executed and, acknowledged the same day. There wasmlso filed and recorded the same day, the following affidavit of Harry A. Henry. •
Duval County.
Personally appeared before me Harry A. Henry, to ma well known who being duly sworn according to law deposes and says, that he has placed in the-hands of and assigned to David H. Doig all of his property, and that the true intention of his assignment to said David H. Doig is to assign to him and place in his hands as assignee, as aforesaid all of said deponent’s property of every, description, except such as is exempted by law from forced sale, to be divided among deponent’s creditors in proportion to their respective demands.
Sworn to and subsreibed before me this 16th day of May, A. D. 1898.
ARTHUR F. PERRY, (Seal.)
Notary Public, State of Florida.
HARRY A. HENRY, (Seal.)
The plaintiff theii proved by D. H. Doig that the whole property actually delivered to, and taken possession of by him, under said deed of assignment, Avas appraised by H. C. Aird and William Knauer shortly after the deed was executed, and the total value thereof was $9,179.96. This valuation included the stock of goods valued -at $3,390.88, store fixtures, book accounts, and bills receivable, which last were valued at $5,114.17, as Avell as the household furniture of the said Henry; that a day or two thereafter he, the said Doig, set aside under said writing to said 'Henry $250 worth of fixtures in the store at the corner of Main and Forsyth Streets, Avherein the said Henry had been carrying on before May 16th, 1898, the grocery business; $550 worth of book accounts, and $200, worth of household furniture so delivered to and taken possession
Plaintiff introduced Harry A. Henry as a witness, who testified that subsequent to December 1st, 1897, he had suffered no special loss or business disaster of any kind except such losses as were usual and incidental to the failure to pay, or delay in paying, by customers to whom he had extended credit, in the usual course; that before December 1st, 1897, and sometime in the fall of that year he had suffered a loss of a thousand dollars in the going down of a boat qf tbe Christopher line carrying freight for him; that his indebtedness, as stated by the witness Doig, was between twelve and fourteen thousand dollars; that this amount of indebtedness had not varied between Decemhw 1st. 1897. and May 16th, 1898: that the ae-oregat° amount of shock carried by him had not vanied specially between those dates. This witness, on examination bv defendant, testified that the writing he, executed May 16tli, 1898, to Doig conveyed all his property, and
Dcember 1st, 1897.
Messrs. Armour & Company, Chicago.
Centlemen: — For the purpose of obtaining credit wit.v you for merchandise which I may hereafter obtain and purchase of you, and for extension of time by note or otherwise- on such purchase I (of the firm name of) H. A Henry of the City of Jacksonville, in the county of Duval, and State of Florida, do make the following full and complete statement of my resources and liabilities.” The paper then shows an aggregate of $34,000 assets, and $8,400 liabilities, giving the items, and concludes: “The above statement both printed and written, has been carefully read by me, and is a full and correct statement of •my financial condition, and I -hereby agree to notify you in advance of any change in the above statement, or anything affecting our financial situation.
(Signature) H. A. HENRY.”
In presence of
Mrs. S. B. Wendt..”
Plaintiff further produced and proved the genuineness by the witness, of a writing, exhibit “4,” addressed by him December 1st, 1897, to “The B'radstreet Company" as follows, omitting the preliminary matter, which is immaterial :
Mr. H. A. Henry.
We respectfully request a statement of your present financial condition or copy of your last balance sheet on the within form. The latest statement from you which we have on file is under date of 189 , and we beg to suggest that you will note on last page here of anything which lias occurred since that date that may be considered of sufficient importance to form a part of our permanent record of your house, such as the purchase or sale of real estate, the admission or retirement of partners, change of location, opening, of branches, fires or anything else of moment. We enclose an addressed envelope for your use in returning the statement after it has been prepared.
The Bradstreet Company
Per..............'........
Dec. 1st ,1897.”
The Bradstreet Company,
Gentlemen: — In response to your request for a statement, the following is submitted showing my condition as it appeared on the......of.... 189.., same being based' on.......(.w: Please state if estimate or inventory, giving date.” Then follows a statement of assets of $31,500, of liabilities of $8,100 and net credit of $26,100, and concludes :
“(Official signature) H. A. HENRY.”
The plaintiff further produced one Coates and one Conroy, agents of the plaintiffs, and proposed to prove by them that within thirty days before August 16th, 1896, the said Henry had assured said witnesses as the agents of the plaintiffs, that his grocery business he was conducting was in a prosperous condition. The defendant Doig ob
This was all the evidence introduced or proffered in the case, and upon the evidence so introduced, the parties having concluded their testimony, the court of its own motion charged the jury as follows: “Under any view of the law in this case yon can only render a verdict for the garnishee. You will, therefore, return a verdict in favor of the garnishee in this case;” to which charge of the court the plaintiff then and there excepted. A verdict and judgment were then given as before recited, for the garnishee.
The assignments of error are, first, the court erred severally in sustaining severally defendant’s objections severally, to the introduction of the several writings, so marked No. 3 and 4, in the bill of exceptions, and ex eluding the same from the jury. Second, the court erred severally in sustaining severally the defendant’s several objections to the proffered testimony of the several witnesses, Coates and Conroy and excluding the same from the jury. Third, the court in the charge to the jury given “mero mota” to return a verdict, in favor of the garnishee in this case erred.
(after stating the, facts.)
The first and second assignments of error may be treated together. The written declarations of his financial condition referred to as exhibits 3 and 4 were made December 1st, 1897. The deed of assignment was executed May lfith, 1893. Henry testified that his financial condition had not substantially changed between those dates.
If the evidence contained in the statements made by Henry to plaintiffs and the'Rradstreet Company, and referred to as exhibits 3 and 4, would have had a teudencv to sliow to the jury that Henry liad assets which he did not turn over to his assignee, it seems to us that the plaintiff should have been permitted to introduce it, inasmuch as Henry testified that he had suffered no material losses and Lis business liad not materially changed between the dates of these statements (Dec. 1, 1897) and the date of the assignment (May 16, 1898). Farrington v. Sexton, supra; Roberts v. Vicetor, 54 Hun, 461, 7 N. Y. S. 777.
While not intending to pass upon the sufficiency of this evidence to establish > the indicated fraud, we think it should have been submitted to the jury with the other evidence, aud the jury should have had an opportunity to pass upon it. McNamara v. Corporation of New Melleray, 88 Iowa, 502. 55 N. W. Rep. 322. This court can not determine what would have been the effect of this testimony if it had been submitted to the jury. Hays v. Ernst, 32 Fla. 18, 13 South. Rep. 451; Elliott App. Pro. sec. 594; 2 Ency. Pl. & Pr., 532 note 2. It is contended by defendant in error that this evidence was properly.ruled out because if liad a tendency to impeach the witness Henry who was introduced as a witness by the plaintiff, and therefore could not he impeached by the plaintiff. The witness Henry was introduced by the plaintiff, and on examination by the defendant’s attorney did testify that he had turned over all his property to his assignee, Doig. Tliis testimony was given by Henry in direct answer io the defendant’s attorney, and not in cross-examination anon any matter upon which the plaintiff had questioned •him. Henry, however, was an adverse'witness, and there
it is strenuously contended by the plaintiff in error that the deed of assignment offered in evidence by him is void as containing purposes and trusts whieh are- in violation of our law providing for assignments for the benefit of creditors. It is objected that the deed only requires the-assignee to take possession and soli the assigned property “wi1h all reasonable despatch” and that this is in conflict with the statute (section 2312 Rev. Stats.) which provides that the assignee ‘‘shall as soon as the foregoing provisions have been complied with proceed to dispose of all the property mentioned in the deed of assignment to
It is also insisted that a part of the property described in the deed is conveyed to the assignee charged with a trust in favor of the assignor, because it is conveyed “subject to homestead exemption.” This phase “subject • to homestead exemption,” taken by itself is doubtless subject to criticism, and is of somewhat ambiguous meaning, but it is followed in the deed by a description of all the property of the grantor, general in its terms, “except such property as is exempt by law from levy and sale under execution under the constitution and laws' of Florida.” In Barton v. Fitzgerald, 15 East, 530, Lord Ellenborough said: “It is a rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et eonsequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if it may be done.” This rule was approved and applied by the court in that case. Applying the same rule here (here appears 1o be no doubt that the assignor Intended to convey all Ins property to the assignee, “except such property as he might exempt under the law, and i*»is under the decisions of this court he might do without, viola Hug the assignment law of the State. 17
Then' is also some criticism of the provision of the deed auihori-dng the assignee, out of the proceeds of the trust property, to first pay and discharge all just and reasonable ertponaes of executing the assignment and carrying inn to effect the trust created, together with all legal and proper compensation and commission of the assignee for services in executing the trust. It is not apparent that these specified purposes of the trust are contrary to the statute, and are not such as are perfectly consistent therewith. Dorr v. Schmidt, supra, pp. 363 and 364. The assignee, i! hi' properly performed his trust, would he en-f.i(led ¡o reasonable compensation for his services, and v ould be reimbursed all reasonable and necessary expenses Mmnrml in administering-the trust, even if the deed
Because of the errors in refusing the plaintiff the right to introduce in evidence the written statements referred to as exhibits 3 and 4, and the proffered testimony of the witnesses Conroy and Coates, the judgment of the Circuit Court in said cause is reversed and a new trial ordered at the cost of the defendant in error.