64 Neb. 766 | Neb. | 1902
This is a replevin action brought in the district court of Thurston county by Phillip H. Bender, plaintiff in error, against Kingman & Co. and John H. Mullen, defendants in error. Mullen was the sheriff of Thurston county, and had levied upon a stock of goods under writs of attachment issued in suits brought by Kingman & Co. - against Weiser Bros., and in the action plaintiff in error obtained possession of the stock of goods claiming to be the vendee of Weiser Bros. An opinion was fthed in this case July 10,1901 (62 Neb., 469.) On application of plaintiff in error a rehearing was allowed, and the case is again presented for consideration.
The facts and circumstances with respect to the transfer to Bender by Weiser Bros, are set out somewhat at length in the opinion of this court in the case of Kingman & Co. v. Weiser Bros., reported in 48 Nebr., 834, and no further statement of such facts need be made herein. The trial court directed a verdict for defendants in error, and such action and the rulings of the court upon the admissibility of certain evidence, are -assigned as error in this proceeding.
The first contention of plaintiff in error is that the court erred in admitting in evidence conversations had between
The next contention of plaintiff in error is that the court erred in directing a verdict for defendants in error. This contention is based upon two grounds: (1) that the evidence was not sufficient to establish fraud; that, in any event, it was not a case in which the evidence was of such a conclusive character that reasonable minds could not differ, and therefore was a case which must have been given to the jury; and (2) that under the statutes of this state, the question of fraudulent intent must necessarily be submitted to the jury for determination.
Our section above quoted is identical in phraseology with the proAdsion of the statute of frauds of the state of New York. Michigan and other states have provisions substantially the same. Befo re the enactment of the Noav York statute, the courts of that state, following the Eng
In the case of Reade v. Livingston, 3 Johns. Ch. [N. Y.], 481, 500, decided in 1818, before the enactment of the New York statute (our section 20), Chancellor Kent said: “The conclusion to be drawn from the cases is, that if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts, and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law, in this case, does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. * * * I should rather conclude, that the fraud in the voluntary settlement was an inference of law, and ought to be so, as far as it concerned existing debts; but that, as to subsequent debts, there is no such necessary legal presumption, and there must he proof -of fraud in fact.” Freeman v. Pope, 5 Ch. App. Cases [Eng.], 536.
In Hamilton v. Russell, 1 Cranch [U. S.], 309, it is said: “The want of possession [in the grantee] is not
It is apparent to us that it was for the purpose of abolishing and avoiding legal presumptions of fraud as recognized in the foregoing cases that section 20 of our chapter 32 and similar provisions in other states were enacted.
In the case of Babcock v. Eckler (decided by the court of appeals of New York), 24 N. Y., 623, Sutherland, J., commenting upon the case of Beade v. Livingston, supra, said: “Subsequently, by section 4, title 3, chapter 7
The doctrine of constructive fraud seems to have been based in a principle of preventive justice, seeking to do away with the possibility of fraud by a declaration that certain acts and contracts, whether accompanied by fraudulent intent or not, shall be fraudulent and void. In some cases actual fraud was repelled. Bowes v. Heaps, 3 Ves. & B. [Eng.], 117, 119.
From an examination of the growth of the law upon the subject of fraud, it would seem that at first the intent was a conclusive presumption of law from many particular circumstances ; next,' a rebuttable presumption of law from a variety of circumstances; and, lastly, it was by statute
As an elementary proposition, in jury trials, it is for the court to decide questions of law, and the jury to decide' questions of fact. But it will readily be admitted that, under our law and the decisions of this court, all ordinary material questions of fact can be submitted to the jury only when the evidence would warrant a finding either way. If a finding in any other but one way would Ik* clearly and manifestly against the evidence, or in conflict with all the evidence, it would be set aside, and in such case it is the duty of the court to determine in advance* of submission the status of the proof, and withdraw" from the consideration of the jury any question regarding which
Does the statute under consideration make an exception to this rule of cases of fraudulent intent? So far as the rules of evidence are concerned, it seems to be well established by authority that no higher or greater degree of proof is required to establish fraudulent intent than other material facts. In civil cases, a preponderance of the evidence is all that is required. Reed v. Noxon, 48 Ill., 323; Carter v. Gunnels, 67 Ill., 270. It is true that proof of fraud must be clear and explicit, and the inference of fraud can not be based on mere suspicion; but this does not make fraudulent intent a question of fact different in kind and degree from other questions of fact. Wherever fraudulent intent is a material part of a plaintiff’s case, without an allegation of such intent, he fails to state a cause; without proof, he can not recover.
By the statute fraudulent intent is made a question of fact. But, manifestly, the question of fact to decide which is the province of the jury must be a question that arises from the evidence. By a question arising from the evidence can be understood only a question regarding which there is sufficient evidence pro and con to warrant a finding one way or the other. It can not be a conceded fact, nor yet a fact regarding which there can be no reasonable dispute. And if fraudulent intent, declared by statute to be a question of fact, is, in a case tried to a jury, so conclusively shown by the evidence that all reasonable and unbiased men must believe it to exist, the case becomes one in which it is proper for the court, to direct a verdict.
To accept the construction contended for, would involve the adoption of a distinct procedure in the trial of cases
The conclusion here reached in no way conflicts with the prior decisions of this court. The case of Monteith v. Bax, 4 Nebr., 166, principally relied on by plaintiff in error to sustain his contention, involved the question of the intent of Adam Bax to defraud his creditors by transferring valuable personal property to his wife. The court below refused to submit the question of fraud to the jury, directing a verdict on the theory that the transfer was not fraudulent. In the opinion by this court the evidence adduced at the trial was set out with sufficient detail to show that the transfer was tainted with fraud as against the creditors of the transferrer, and, as that was the real question raised and to be determined in the case, it was held that the court below should have submitted the question of fraud to the jury as one of fact to' be determined from all the evidence. Blit after a careful examination of that opinion Ave can not find in it any authority for assuming that had the evidence wholly fathed to raise any question of fraudulent intent the judgment would still ha.A'-e been reversed, but, on the contrary, reversal was, necessary because of the presence of evidence conflicting with the Amrdict directed by the court. Nor can we find anything in that opinion in con
In the case of Hedman v. Anderson, 6 Nebr., 392, cited by plaintiff in error, it is held: “A mortgage of goods and chattels, with possession and power of sale in the mortgagor, is void as against his creditors.” In the opinion, after showing that fraudulent intent must ordinarily be established by circumstantial evidence, it is said: “But the questions as to the existence of facts showing a fraudulent intent are alone for the jury to determine and not for the court. If, however, certain facts are conceded to exist, the question of their sufficiency to indicate a fraudulent intent becomes a question of law which the court must determine. But the question of the credibility of witnesses rests entirely with the jury.” In that case but three things are determined,—that a mortagage fraudulent upon its face must be so pronounced by the court; that, where conceded facts show fraud, it is for the court so to instruct the jury; and that, where there, is a question in fact as to the existence of a fraudulent intent, such question, with the credibility of the witnesses, is for the jury.
In Williams v. Evans, 6 Nebr., 216, it is said: “If the instrument on its face is one the law will not sanction as against creditors, it is the duty of the court to pronounce it fraudulent as to them”; but, “where an instrument is not void upon its face the question of fraudulent intent is a question of fact which should be submitted to the jury,” thus following the rule that where there is a question of fact about which reasonable minds might differ the case is one for the jury. Connelly v. Edgerton, 22 Nebr., 82, and Davis v. Scott, 22 Nebr., 154, are to the same effect, and contain nothing contrary to the rule which we have announced in this case..
A critical examination of'the cases cited by plaintiff
No error appearing in the proceedings of the trial court, the former opinion is adhered to.
By the Court: For the reasons stated in the foregoing opinion, the opinion heretofore rendered by this court, affirming the judgment of the district court, is adhered to.
Affirmed.
2 Revised Statutes (1875), 137.