28 W. Va. 773 | W. Va. | 1886
Statement of the case by
The record in this case shows that Harrison Martin, David Martin and Blackburn Martin, partners trading as Martin Bros., obtained from Thomas P. Butcher, a justice of Wood county, an attachment on April 18, 1888, against the personal estate and credits of George Park found in said county and not exempt by law sufficient to satisfy the plaintiffs’ claim, which was for $228.90 with interest from May 11, 1888, when the two negotiable notes, the basis of plaintiffs’ claim, would become due, and the costs of this suit. The grounds for issuing this attachment as stated in the affidavit were, first, that the defendant, George Park, was a non
These summonses were issued at once and returned, and the justice on July 19, 1883, the parties claiming having all appeared, and the evidence and argument of counsel having been all heard, decided, that the money was not the property of the petioner, Albion Bindley, and ordered the Baltimore and Ohio Railroad Company to pay to the plaintiff, Martin Bros., out of said fund $109.95, the amount of their judgment against George Park.
The petitioner, Albion Bindley, applied promptly for an appeal from this judgment, but owing to delays caused by his living in Pittsburg, Pennsylvania, though he executed an
From tbis judgment a writ of error and supersedeas was awarded by a judge of our Court.
At a trial of this cause the said defendants, Martin Bros., excepted to the rulings of the court in refusing to set aside this' verdict and grant them a new trial and entering up against them said judgment on December 18, 1884. And in this bill of exceptions all the evidence before the jury is certified, which is as follows :
Albion Bindley the plaintiff offered in evidence the depositions of George Park and of himself taken in Pittsburg; and at the taking of these depositions the defendants Martin Bros., did not appear; and they were read to the jury.
George Park testified, that he had been engaged for six years in the manufacture and sale of lumber in Jefferson county, Pennsylvania and latterly in "Wood and Wirt counties West Virginia. In the fall of 1882 he accepted an order from the Baltimore and Ohio Railroad Company for oak lumber to be delivered in Parkersburg. He delivered part of this lumber on this order and collected the money for the part delivered, when on March 19, 1883, he sold all his lumber on hand to Albion Bindley of Pittsburg, Pa. He sold to him the following amounts of lumber at the following prices and he furnished this statement of it:
“50,000 feet 2:,5x6 white oak at §12 per. M.§ 600 00
20,000 “ lin. oak board at 12 per. M . 240 00
5,000 “ 1J in. “ plank “12 “ “ 60 00
5,000 “ 2 in. “ “ “ “ “ “ . 60 00
5,000 “ 3 in. “ “ “ “ “ “ . 60 00
5,000 “ 4 in. “. 60 00
2,500 “ 3x4 “ “ “ “ “ “. 30 00
60,000 “ white oak for ears “ “ “ 720 00
64,000 “ popularlumberat §10 “ “ ... .... 640 00
The above lumber was in W. Va.; 70,000 feet popular
boards on wharf in Pittsburg, at $12 per M. 840 00
§ 3,310 00”
All this lumber was at his, Park’s, mill at Claysville in Wood county, West Virginia and on Hughes river in Wirt county, West Virginia, except 70,000 feet, which was at the
In the deposition of Albion Bindley he testifies to the sale of the lumber to him by Park, just as it was stated in Park’s deposition. The sale was made on March 19, 1885. He, Bindley, was to take immediate charge and possession of the lumber, where it was, but, but as he could not attend to its shipment from there to Pittsburg, where he lived and was engaged in the timber and building business, Park agreed to attend to the shipping for him, the price of the timber was to be paid six months after its arrival at wharf at Pitts-burg. Park accordingly did go there and, after he had shipped a small amount of the timber, it was attached by one of his creditors. Bindley says, he paid all the expenses incurred in this shipment out of his own pocket. He agreed to fill Park’s previous contract with the Baltimore and Ohio Railroad Co. for the sale and delivery of oak lumber, and he caused this lumber to be shipped to the Baltimore and Ohio Railroad Go. and presented his bill to them in his own name for $348.70, but afterwards at their request made out the bill in the name of George Park, agent for Albion Bindley. This was the money’attached in this suit. All this lumber, for which this $348.70 is due, was delivered by him to the Baltimore and Ohio Railroad Co., after his purchase of it from Park. He furnishes a detailed list of the lumber and of the times of its delivery to said Company and the amounts and the price per thousand feet, which said Company was to pay for it. These shipments were all made on April 2d 1883, and on April 4, 1883, and the total value of the lumber shipped on those days to the Baltimore and Ohio Railroad Co. by him through his agent Park at the pi’ices agreed on was $348.70. He makes the same statement as Park about the orders given by Park on him on March 3d 1883, aud his acceptance of them, and says, he has paid all the money due to Park on this sale of lumber to him in accordance with these orders accepted by him, and none of it to Park individually. These depositions were taken February 20, 1884.
The defendants, Martin Bros., proved by T. P. Butcher, the justice who tried this interpleader case, that both Park and Bindley were witnesses at the trial before him, and proved, that they testified before, him to just what they deposed to in their deposition in substance; but he says, “that there was a contract of sale on said trial offered in evidence by said Bindley; he did not recollect just what it contained, but from his best recollection it contained the list of lumber purchased by Bindley from Park; that also a claim against the Allegheny Railroad Co., was in it but does not know what it amounted to. lie thinks there was no consideration mentioned in said paper-writing and it was proven on said trial the price, for which the timber was sold by Park to Bindley.” Butcher the justice says also, “that when said paper-writing was offered in evidence, Martin Bros, objected to the same.” E. A. Sherwood, the sawyer at Park’s mill at Claysville, on behalf of Martin Bros., testified, that he was such sawyer there both before and after the 19th of March, 1883, and until the mill was attached by some of Park’s creditors; that so far as he knew, the.lumber at this mill on March 19, 1883, had not been measured by Park, and if it had been, he thinks he would have known it. He had measured and assisted in loading all the lumber sold to the Baltimore and Ohio Railroad Co.; that Park was at the mill after March 19, 1883, and ran it as before and sold various lots of lumber after that to other persons; that Bindley was never there; that Park shipped no lumber to Pittsburg after March 19, 1883, except a barge-load on the Little Kanawha river, on which he, Sherwood, had levied an attachment, which he afterwards released. Park never represented to him after March 19, 1883, until the attachment, that he had sold the lumber to Bindley nor to anybody else, so far as he knew, but he continued at the mill selling lumber as before. The other lumber at the mill was sold by the sheriff of Wood county under an attachment; he was present at the trial of this case before the justice'and read what purported to be a contract for the sale of lumber from
John Murphy simply testified, that he was and had been the agent of the Baltimore aud Ohio Railroad Company and gave an order tor lumber to Park in 1882 or 1883 and the money attached in this suit was the proceeds of this lumber; but he did not know, to whom the lumber belonged when furnished to the company, and the lumber was sold to the company in the name of Park individually and not as agent.
Bennington, who was in business with Martin Bros., testified for them, that he was present at the trial of this case before the justice “ and saw a paper-writing offered in evidence, but did not know what it contained. Saw no change when he was at Claysville. Park was conducting the business there on and after March 15, 1883, as before. It was also proven, that the money attached by Martin Bros, in the hands of the Baltimore and Ohio Railroad Company and claimed by Bindley had been paid over to Martin Bros, because Bindley had got no supersedeas, when he took his appeal, and the amount so paid was proven. This bill of exceptions then proceeds : “ And thereupon on motion of the defendants, Martin Bros., by counsel the court excluded from the jury all the evidence of the claimant Bindley and the witness, Park, relating to a contract not in writing, as testified by them.” After this was done the defendants offered some portions of the proceedings before the justice, which the plaiutifis had omitted to present, and it went to the jury.
This was the case, as stated in this bill of exceptions, on which the jury founded their verdict for Bindley, which the court refused to set aside, and on which verdict the court rendered the judgment, which is now before us for review on writ of error and swpersedeas.
Opinion by
The bill of exceptions- taken by Martin Bros., the defendants, to the refusal of the court to award them a new trial,
The justice testified before the jury as a witness for the defendants, Martin Bros., that there was a contract of sale on the trial before’ him offered in evidence by Bindley, and the attorney for Martin Bros, objected to its being introduced as evidence. He said he did uot recollect just what it contained, but from his best recollection “it contained the list of lumber purchased by Bindley from Park, thinks also a claim against the Allegheny Railroad Company, but does not know what it amounted to. He thought, there was no consideration mentioned in this paper-writing, and it was proven on the trial at what price the lumber was sold.” He also proved, that Bindley at this trial testified, that he had appointed Park (after this purchase from him) his agent to look after this lumber aud ship it to him at Pittsburg.
Sherwood, a witness for the defendants, Martin Bros., testified boto re the jury, that he was a sawyer for Park at his mill in Wood county both before and after March 19,1883; that lumber at the mill had not been measured, so far as he knew and believed, prior to March 19, 1883; and that Park was at the mill after that time and ran it as before and sold various lots of lumber to other persons. He was at the trial before the justice and saw and read what purported tobe a contract for the sale of lumber from Park to Bindley, which was offered in evidence, but he does not know what it contained, but Bindley claimed under it the money from the Baltimore and Ohio Railroad Company, and thinks, the same items of lumber were in it, as are mentioned in the deposition of Park.
The bill of exceptions taken by Martin Bros, to the refusal of the court to award them a new trial says: after part of this evidence was submitted a motion was made by Mar.tin Bros, to “exclude from the-jury all the evidence of the claimant Bindley and witness Park relating to a contract not in writing as testified by them.” After that the defendants introduced only the balance of the transcript of the proceedings before the justice, which the plaintiff had not introduced. It is. obvious therefore that the court did not intend by this to instruct the jury to disregard such portions of the evidence of Bindley and Park contained in their depositions, of which I have given the substance in the statement of the case, as they might consider related to any contract not in writing. It did not intend .to give an instruction of any sort to the jury, as it was done, before the evidence was concluded, and instructions to the jury are not given, till after the evidence is closed. What the court intended was to exclude certain portions of the depositions of Park and Bindley from the consideration of the jury entirely, because it was secondary evidence, there being in the possession of Bindley a written contract, which would have shown definitely and -accurately some things, which were improperly attempted to be proven by Park, and the written contract, which was the primary and best evidence on this subject, not being produced, when it could have been, by the plaintiff, neither he nor Park could properly testify in reference to those matters, which could be better proven by the production of the writing, the contract between them, which had been produced at the trial before the justice. But the court failed to designate, what portions of the depositions of Bindley and Park it excluded from the jury as evidence. The counsel of Martin Bros, argue, that there “was no material evidence before the jury, upon which to found any verdict for Bindley,” because the court excluded
From the record presented to us I'am unable to arrive atany definite conclusion as to what portions of the depositions of Bindley and Park the court intended to exclude as evidence. It is impossible for me, as it must have been for the jury, to understand what portions of the depositions of Bindley and Park “related to a contract not in writing” which the court intended to exclude as evidence. If we give to .this phrase, as the counsel for the plaintiff in error does, its broadest and most comprehensive meaning, it would include every material part of these depositions ; and this the court certainly did not mean, or it would have excluded the depositions from the jury. There were several different contracts not in writing, to which portions of these depositions related either remotely or directly. For instance in both these depositions it is stated, that on the 30th of March, 1883, Bindley agreed with Park to pay to the creditors of Park in a certain order the money Bindley owed Park on this sale oí lumber. ,l)id the court intend to exclude all that was said about this in these depositions ? It certainly “related to a contract not in writing.” I can hardly suppose it did. Again both these witnesses speak of a contract between Park and the Baltimore and Ohio Railroad Company in the fall of 1882, whereby Park was to deliver certain quantities of oak lumber at certain prices to this company. Did the cour! intend to exclude from the jury as evidence what was said on this subject? I suppose not; and yet “it related to a contract not in writing.” Then these depositions both speak of a contract between Bindley and Park, whereby Bindley agreed to carry out, as far as it was
If I were at liberty to make a guess as to the portions of' the depositions, which the court below intended to exclude from the jury, I would guess, it was probably those portions that relate to the terms of the contract for the sale of this lumber made on March 19, 1883, between Bindley and Park; as, ifthere was any contract in writing at all, it was most probably this contract, but the proof that this contract was in writing is far from satisfactory, and even if it were, it would not be a fair inference, that the contract madeby Park and Bindley at the same time on March 19, 1883, whereby Bindley agreed to complete the contract made in the fall of 1882 by Park with the Baltimore and Ohio Railroad Company for the delivery of certain quantities of oak timber at certain prices per thousand feet, was also in writing, or that, though made at the same time, they were one contact and contained in the written contract of sale, if that contract was in writing.
In Harrison v. Henderson, 1 Foster (21 N. H.) 224, it was held, that, although parties may have made a written contract, it may be shown, that at the same time they made a verbal contract touchingthe subject of the writing, if it do not contradict or vary it. As for example, a bill of sale for a horse may be offered in evidence containing also a receipt for the payment of the price, yet parol evidence would be admissible, that the vendor at the time of the sale warranted the horse to be sound, and such parol evidence would be admissible, as it would not contradict or vary the writing. The same is held in Allen v. Pink, 4 M. & W. 140.
But really there is no satisfactory proof, that the sale made
The court as well as the jury might well hesitate to consider it by this evidence proven, that this contract of sale of. March 19,1888, was in writing and signed by the parties in opposition to the positive statement of Park, that it was not, corroborated by a like inference to be drawn from Bindley’s deposition. I shall therefore consider this case on its merits, as if no part of the depositions of Bindley and Park had been excluded by the court below as evidence to be considered by the jury and given the weight, it was legally entitled to receive.
If any of the facts testified to by Bindley or Park in their deposition with regard to the terms of the sale of the lumber claimed to have been made by Park to Bindley or any other facts testified, to by them in their depositions could have been proved by the plaintifi by the production of superior and better and most satisfactory evidence, as for instance, a contract between them or any written memorandum, which was admissible as evidence, the holding back of such evidence raises a presumption of fact against him, if this evidence could have been produced by him. In this case for instance Bindley in his deposition says: “On March-19, 1883, Park sold me the amount and kind of lumber he has stated in his testimony and at the-prices he says. I was to take immediate charge and possession of it, but as I could not attend to its shipment from there, he agreed to attend to it for me, and I
Now we have seen in this case, that the attempt on the part of the defendants, Martin Bros., to prove, that the plaintiff had in his possession and produced at the trial this higher and more satisfactory evidence, was as to the terms of this sale though not a total failure at least very unsatisfactory ; and therefore, if the jury inferred, that the plaintiff Bindley did not have this more satisfactory evidence in his' possession, we can not say, that the inference, which they drew, was so unreasonable as to justify this Court in setting aside their verdict in favor of the plaintiff. The unfavorable inference to be drawn against a party, who holds back evidence of importance, which he could produce, is illustrated by the following among other cases: Fowler v. Sergeant, 1 Grant 355; Wentworth v. Floyd, 10 H. L. Cas. 589; Finch v. Barbour, 24 Pa. St. 120. But in.such case it should be understood, that the presumption against a party, who fails to produce written evidence, when he can do so, is not
It may be regarded as satisfactorily proven, that for a considerable time after the alleged sale by* him to Bindley on the 19th of March, 1883, there was no actual delivery, and Park remained in control of this lumber without any apparent change in the ownership. How there is probably scarcely a single subject to be proved, where there has been a greater diversity of opinion, than that which has arisen as to what should be regarded as the legal effect, where there is an absolute sale of goods, and the possession remains with the vendor, so that he continues apparently the owner of the goods still. How an absolute sale of chattels, where there is no delivery of possession to the purchaser, should be regarded, whether as absolutely void as to creditors and bona fide- purchasers as a fraud perse, or as such fraud per se with such exceptions only, as th<> courts as a matter of law shall decide, or whether such sales as to such parties are to be regarded as only prim.a facie fraudulent in fact, and as a matter of fact the jury is to determine in each particular case under the instructions of the court, whether such prima facie presumption of fraud in fact has been rebutted by the evidence introduced by the purchaser as to the fairness of the sale as well as of the retention of the possession by the seller, has given rise to greater diversity' of opinion and more discussion than any other legal question.
The States in which it is held, that such absolute sale without delivery of possession is as to such persons fraudulent in law' or, as the phrase is, a fraud per se, or that it is a fraud perse with such exceptions, as the courts shall decide as a matter of law render it not fraudulent, are Alabama Connecticut, Delaware, Florida, Kentucky, Illinois, Indiana, Maryland, Hew Hampshire, Hew Jersey7, Pennsylvania,
The decision of the Supreme Court of the United States which was followed in these States was Hamilton v. Russell, 1 Cranch 310 ; and it followed Edwards v. Harben, 2 T. R. 587. But the principles laid down in this last case have been since abandoned by the English decisions; and the principle now followed by the English courts is, that absolute.sales of chattels, when the possession is not delivered to the purchaser, as against creditors and bona fide purchasers are prima facie fraudulent in fact, but this prima facie presumption of fraud maybe rebutted by proof; and that in each particular case the jury under the instructions of the court and not the court is to decide, whether or not such sale is fraudulent, it being a question, of fact an i not of law simply. (Martin-
The progress of the legal opinion of this country is towards, the position of the modern English courts, and the disposition, to depart from the law as laid down by the Supreme Court on account of the difficulty of applying it because of the many exceptions, which the courts have had to make to the general rule, that such a sale as to such persons is to be regarded as fraudulent in law, a fraud perse, are shown in the eases below, which have repudiated the decisions of the United States Supreme Court as to fraud per se and adopted to a greater or less extent the modern English law, that in such a case the question of fraud or uo fraud is a question for the jury: Hemstead v. Johnson, 18 Ark. 184; Peck v. Land, 2 Kelly 1; Fleming v. Townsend, 6 Ga. 104; Beers and others v. Dawson, Id. 557; Ulmer v. Mills, 8 Greenleaf 312; Clark v. French, 23 Maine 221; Brooks v. Powers, 15 Mass. 244; Holmes v. Crane, 2 Pick 607; Olliver v. Eston, 3 Mich. 114; Shepherd v. Trigg, 7 Mo. 416; Milburn v. Waugh, Corthorn and others, 11 Mo. 369; Kuykendall v. McDonald, 15 Mo. 416; Rea, v. Alexander, 5 Ired. 644; Stoddart v. Butler, 20 Wend., 507; Smith & Hoe v. Archer, 23 Wend. 563; Handsford v. Archer, 1 Hill N. Y. 273; Bishop v. Cork, 13 Barb. 429, sed ride. Sturtevant & Keep v. Ballard, 9 Johns. 327; Jennings v. Carter & Wilcox, 2 Wend. 446; Rogers v. Dare and others,
In the case of Davis v. Turner, 4 Gratt. 422, the Court of Appeals of Virginia weut into a most laborious and careiul examination of the question, we are now considering, and in this opinion they reversed all the preceding Virginia cases, several of which, which appear to have laid down the law as laid down by the Supreme Court, which they disapproved.. The syllabus of the case is : “The doctrine of fraud per se examined and repudiated. The retaining possession of personal property by the vendor after au absolute sale is prima facie fraudulent; but the presumption may be rebutted by proof.”
Where the court here say, the doctrine of fraud per se is repudiated, I understand them to mean in case of an absolute sale of personal property, where the seller retained possession of it, such sale as.to the creditors of the seller is not void in law as necessarily fraudulent, but it is a question of fact, whether it be fraudulent, alid the prima facie presumption, that such saléis fraudulent, may on the trial of the case before a jury be rebutted by proof. .This was what was really decided in that case; and so understood I approve it as in accord with sound reasoning and with the weight of authority. But even if I thought otherwise, I should feel bound by this decision as settling this much disputed question after a most careful examination of it, the discussion of it in that case occupying nearly fifty pages of the volume of reports. And so far as I am aware this case has always been regarded by the bar as finally settling this much mooted question both in Virginia and in this State, whether in such case the court or jury should decide as to the fraudulency of such a sale. Its authority has never since been questioned either in this State or in Virginia. It was followed and its binding authority recognized in Forkner v. Stuart, &c. 6 Gratt, 197, and in Curd v. Miller’s ex’ors, 7 Gratt. 185.
I understand from these three case's in Grattan above referred to, that the retention of possession of personal property by the seller after an absolute sale raises a strong presumption of fraud as against the creditors of the seller, as it indicates, that the sale is a sham, or that the seller after the sale was to retain some interest in the property, and if the sale was a mere sham or was for an inadequate consideration, or if the seller retained an interest in the property after the sale, it would in either of the secases be a fraudulent sale and void as to the creditors kof the seller; and therefore, if the seller remains in the possession of the personal property after its absolute sale, he must prove to the satisfaction of the jury, that the pretended sale was for a fair and valuable consideration, and that the seller did not retain an interest in the property after the sale, and unless this bo proven, the legal presumption, that the sale was fraudulent can not be repelled, for this presumption throws imperatively upon the purchaser the burden of proving the fairness and good faith of the entire transaction. The jury may therefore be properly instructed by the court as to the strength and nature of the presumption, which the law attaches to the fact, that the seller remains in possession of personal property after an absolute sale. They may also be properly directed to attach to it such
Thus the rule, which should govern the courts in awarding a new trial in cases of this character, is somewhat different from the rule, which usually governs the court in awarding new trials. This is a consequence of the presumption of fraud, which‘in this State and in Virginia is attached to the seller of personal property, who retains possession of it after a sale, being a legal presumption and as such having greater weight than the natural presumption, which a jury would give to such retention of possession by the seller, though such a presumption is in no case conclusive; and they are therefore peculiarly liable to err by not giving such retention of possession by the seller the full weight as a prima, facie presumption of fraud, to which it is legally entitled. The Court should therefore see, that the jury’s verdict has not been based on this natural misunderstanding of the law. But if the court can see, that giving to the retention of the pos
Though we have endeavored to state, in which of the States of the Union the courts hold, that the retention of the possession of personal property with certain exceptions laid down by the courts is conclusively fraudulent as to creditors, and such fraud can not be rebutted by proof of the falseness of the whole transaction, and in which of the States of the Union this is Held not to be a true exposition of the law, and that in such case the question should be submitted to the jury as a question of fact; yet it should bo understood, that it is difficult to classify the States in this manner. There are some States, in which the decisions are to a considerable extent different from most of the other States, in which they are above classed. Thus for instance many of the decisions in Hew Hampshire seem to be based on a different principle trom those of most of the States, with which it is classed above.
“It is settled as firmly, as any legal principle can be settled, that the fraud, which renders void the contract in these cases, is a secret trust accompanying the sale, and that in the case of absolute sales, possession and use by the vendor, after the sale, is always -prima fade, and if unexplained conclusive evidence of secret trust. It is therefore very clear, that fraud is sometimes a question of fact and sometimes a question of law. When the question is, was there a secret trust ? it is a question of fact; but when the fact of a secret trust is admitted, or in any way established, the fraud is an inference of law which the the court is bound to pronounce.”
In the South Carolina decisions a similar view can be sometimes noticed. The numerous Virginia decisions above cited seem therefore in principle to accord more nearly perhaps with the New Hampshire and South Carolina decisions than with the decisions of some other States, with which we hatfe classified Virginia, as for instance, Massachusetts and Maine, where it would appear, that the practice is to let the non-delivery of possession by the seller, where an absolute sale is made, go to the jury for whatever it may appear to them to be worth.- This is essentially difierent from the practice in Virginia to be deduced from the cases in 4th, 6th and 7th Gratt. Perhaps it may be misleading to classify, as I have done above, Massachusetts and Virginia together, or to classify, as wo have done, Pennsylvania and New Hampshire together. But I thought despite these defects of such classification, perhaps a better idea could be obtained by dividing all the States into two classes, as I have done, arranging each State under one or the other of these classes according as its decisions generally accorded most with one or the other, than to reuder a contused subject perhaps still more confused by multiplying the classes, in which to arrange the decisions of the different States. It would be an utterly hopeless effort in this opinion to give any-clear and definite idea of the different varieties of views on this subject entertained in the different States of the Hnion, as shown by their decisions. All that cambe done is to give a general view o.t them; and more than this I deem unnecessary, as the cases
The only question remaining to be decided is : Did the circuit court on the evidence certified by the judge err in refusing to set aside the verdict of the jury, which in effect found, that this absolute sale of March 19, 1883, by Park to Bindley was not fraudulent and void as to Park’s creditors ? The evidence certified clearly proves, that the seller Park remained in possession "of the lumber sold on March 19, 1883, for two or three weeks thereafter, till it was attached and levied upon by certain of his creditors. This, we have seen, raised the legal presumption, that the sale was fraudulent as to the creditor’s of Park. (Curd v. Miller's Executors, 7 Gratt. 185); and this presumption according to this authority threw imperatively on Bindley, the purchaser, the whole burden of proving the fairness and good faith of the transaction, and this burden he did not meet, unless there is sufficient evidence in the case to show, that the sale was for a lair and valuable consideration. As we have stated above, there must also be in the case sufficient evidence to show, that there was no secret trust in this sale, whereby Park was to continue to have an interest in the lumber after the sale, as his continuing in the possession and apparent ownership of it raised a strong 'prima fade presumption, that there was such a secret trust, and that Park continued to have an interest in the lumber after its sale.
Was there sufficient evidence before the jury to show that this sale was for a fair and valuable consideration? Park in his deposition gives a detailed list of the lumber sold to Bindley on March 19, 1883, and the price per thousand feet, at which the lumber ot each kind was sold; and he deposes, that the prices, he sold it at, were its fair market value and all, that he could get for it after trying to sell it for some time. Bindley in his evidence corroborates Park’s evidence
But there was imposed on Bindley, as we have seen, in this case the further burden of showing, that Park had no interest in this lumber after the 19th of March, 1883, when he sold it to Bindley. Was this burden mot? Park and Bindley in their depositions both testify, that as Bindley lived and did business in Pittsburg, Pennsylvania, and could not attend to the shipping of this lumber, he bought of Park on .March 19, 1888, from Wood county, whore it was, to Pittsburg, he, when he bought the lumber, required Park to attend to its shipment, and he agreed to do so, Bindley to pay his expenses while superintending the transportation and shipping of the lumber and also the expenses of the hands, whom Park should hire to aid in shipping the lumber, and the cost also of its transportation. This agreement was carried out; Park took control of the lumber, and while he was attending to its shipment as agreed, it was attached by some creditor or creditors of Park probably two or three weeks alter the sale. This is the explanation given by both Park and Bindley in their depositions of the fact, that Park after the sale remained in the control of the lumber as its apparent owner. If true, this rebuts the prima facie presumption, which the law raises, that his continued possession of the lumber after the sale was a fraud as against his creditors, because it is to be presumed, that it was understood, he was to continue to have an interest of some kind in the lumber after its sale. If the depositions of Park and Bindley can be relied upon, then Park had no interest in the lumber after the sale to Bindley on March 19, 1883, and he exercised control over it and was apparently the owner of it still, only because he had according to his agreement continued in the temporary possession as Bindley’s'agent, while superintending at Bindley’s expense the shipment of the lumber to Pittsburg, where Bindley wanted it in his trade. The
But it is insisted, that, though this evidence might be sufficient to rebut the strong legal presumption of fraud raised by the fact, that the seller after March 19,1883, remained in possession of the lamber and acted as its apparent owner hiring hands, to aid in its shipment, yet the evidence disproves these statements of the seller and purchaser of the lumber. The principal evidence relied on) by the defendants below, Martin Bros., to disprove these statements and to show, that Park after this sale on March 19, 1883, continued to have an interest in this lumber is that of E. A. Sherwood. He testified, that Park was at the mill after March 19, 1883, and ran it as before and sold various lots of lumber after that to other persons; that Park shipped no lumber after March 19, 1883, except a barge load on which he (Sherwood) levied an attachment, which he after-wards released. lie was the sawyer of Park. How it does not seem to me, that this statement is necessarily in conflict with the inference, which could be and doubtless was drawn by the jury from the depositions of Park and Bindley, that after the sale March 19, 1883, Park had no interest in any of the lumber, which he had sold to Bindley. Their evidence shows, that the lumber he sold Bindley -was all planks, boards and trees already sawed up into lumber at the time of the sale. Bindley had in his business no use for trees not sawed up but only for lumber already sawed. There was according to their statements a sale of only this sort of lumber, and they say nothing about any agreement of Park to saw up any more trees into lumber for Bindley. It was therefore entirely consistant with their contract, that Park should saw up after March 19, 1883, any trees or logs,which he had at his mill then, and sell the lumber made from those logs to other persons; for they were and continued to ' be his own logs, and there is nothing in the evidence of Sher
The evidence of Bennington, that, when he chanced to be at the mill alter March 19, 1883, “he saw Park acting as usual and conducting the business as he had before,” proves nothing, which indicates, that Park had any interest in this lumber sawed prior to March 19, 1883. It is doubtless true, that Park was then attending to the sawing of logs, which he had on hand, and to the transhipment of the plank, which he had sawed prior to March 19, 1883, all of which, Park says, belonged to Bindley, to the shipping of which he had agreed to attend; his superintending the shipping was in accord with the terms of the sale of this plank, which he had made, and in no way shows, that he had any interest iu the plank sawed prior to March 19, 1883. There is nothing else to indicate that Park had an interest in this lumber, which had been sawed prior to March 19, 1883, except the evidence of Sherwood, that Park never told him, till an attachment was levied on this lumber, that he had sold it on March 19, 1883, to Bindley. It does not strike me that this was very strange. Park owed Sherwood as his sawyer, and when he undertook to ship asBindley’s agent a barge of this lumber, it was at once attached by Sherwood. Had Park stated to him, that he had sold to Bindley all his lumber, it would doubtless have resulted in his at once attaching it; and Park can not be blamed for not volunteering information to Sherwood, which might lead to this result. Sherwood says, ■that, as far as he knows, this lumber at the mill, which had been sawed prior to March 19, 1883, and which was then there, had not been measured, and if it had been measured, he thinks he would have known it. This witness says noth-to show, that this lumber might not have been measured without his knowledge. He simply says, he thinks he would have known it, if it had been measured. If wTe are to understand the depositions of Bindley and Park, as, I suppose
The only other evidence in conflict with the testimony of the witnesses is that of John Murphy, an employe of the Baltimore and Ohio Bail road Company, whose duty it was to receive and inspect this lumber. He testifies, that “the lumber was returned to the company in the name of Park individually not as agent.” The lumber he refers to is some lumber, which, he says, “he gave an order for to George Park some time in 1882 or 1883.” Of this transaction Park in his deposition says: “In the fall of 1882 I accepted an order for oak lumber for the Baltimore and Ohio Railroad to be delivered at Parkersburg. I delivered a part of the order and collected the money for the part delivered. When I sold all my lumber to Albion Bindley of Pittsburg, Pennsylvania, on March 19, 1883, he agreed to carry out and complete this contract with the railroad company ; and as agent for Albion Bindley I superintended the shipment of the lumber to the Baltimore and Ohio Railroad Company at Park-ersburg. It was all taken from lumber on hand sold to Bindley. I rendered a bill for it to them in Bindley’s name, and they insisted on its being billed by me as agent for Mr. Bindley, which I did.”
Bindley testifies :
• “ It was all shipped afterwards by me as follows :
1883.
April 2 — 2,506 8-12 ft. white oak @ $18.00 per M . §45 12
2 — 4,311 5-12“ “ “ “ 16.00 ““.68 98
4 — 1,839 2-12 “ “ “ “ 18,00 “ “ . 33 11
2,753 8-12 “ “ “ “ 16.00 “ “.' 47 26
3,596 2-1«“ “ “ 16.00 “ “ . 57 34
1,433 9-12 “ “ ' “ “ 18.00 “ “ . 25 81
3,065 11-12 “ “ “ “ 16.00 “ “ . 49 05
1,224 “ “ “ “ 18.00 “ “. 22 03
§348 70
*803 He further says “ I presented a bill for it first in my own name and afterwards at their request in the name of George Park, agent for me, amounting to $348.70. This is the money attached by Martin Bros.”
Now it seems to me, that, if these statements of the name, in which this lumber was shipped, and the name of the person, in whose name the bill for it was presented to the proper agent of the Baltimore and Ohio Bail road Company, were untrue, it was perfectly easy for the defendants to disprove them by the production of the bill, which had been presented to the company for this lumber, and that such pi’oof would have been far more satisfactory than this statement of this inspector of lumber, that “this lumber was returned to the company in the name of Park individually and not as agent.” It is quite probable, that this inspector would assume, that it was Park’s lumber, as it was delivered to fulfil a contract with Park; and I do not suppose, that there ivas any necessity to explain to him, that it was Bi'ndley’s lumber, and that he was filling Park’s contract. Park and Bindley both say, that the bill was first rendered to the proper officer of the company in Bindley’s name, and afterwards it was changed to Park’s, as agent of Bindley, at his instance, I suppose to show, that it was the balance on the contract'with Park. He was the proper person to contradict the statement of Park and Bindley in their depositions; and, if what they stated was untrue, he could have effectively contradicted them by the production of the bill for the lumber actually presented to the company, which he kept doubtless. The principle, which we have laid down, seems to me, to apply in this case, that “the holding hack of evidence may be used as a presumption against the party, who holds back such evidence, in all cases, in which it could be produced.” It seems to me the jury had a right to believe under these circumstances, that the statements in the depositions of Park and Bindley, in reference to the name, in which this lumber was after March 19,1883, delivered to the Baltimore and Ohio Railroad Company were true; and that the burden imposed on Bindley, the plaintiff, of proving, that Park after March 19, 1883, had no interest in this lumber sawed prior to that date and then on hand and sold to Bindley, was fairly met. It
If we consider, that the jury fully understood the weight of the presumption against the plaintiff below, the purchaser of the lumber, which resulted from his leaving the lumber in the hands of the seller, Park, yet the evidence in this case was sufficient to warrant the finding by the jury, that this strong prima facie presumption of fraud was rebutted ; and we can not award a new trial because of such finding, unless the evidence is plainly insufficient to overthrow the strong presumption of fraud raised .by the admitted fact, that the possession of this lumber remained with the seller after an ábsolute sale of it to the plaintiff below-. (Grayson’s Case, 6 Gratt 724). • We do not think that this evidence was plainly insufficient to produce this result; on the contrary, if the eyidence of Park and. Bindley w7as credited by the jury, their evidence, as we have seen, warranted the verdict, which • the jury rendered despite all the evidence of the witnesses of the defendants below.
The court below therefore did not err in refusing to grant a new trial in this case; and the judgment of December 18, 1884, rendered on this verdict must be affirmed, and the defendant in error Albion Bindley must recover of the plaintiff’s in error Harrison Martin, David Martin and Blackburn-Martin, partners trading as Martin Bros., his costs in this Court expended and 30.00 damages.
Aefirmed.