29 Ill. App. 377 | Ill. App. Ct. | 1888
Eeplevin against the sheriff for 5,000 cigars part of a stock taken on five writs of execution against L. S. Ensel, who was then in possession and apparently the owner. Those in controversy he obtained from the plaintiffs by a formal purchase, but as they allege, with the intention not to pay for them. On that ground alone they based their right of action and recovered.
It was a very proper case for a jury, involving the single question of his intention in respect of payment at the time he ordered them. He positively denied the fraud charged, and to establish it against such denial plaintiffs necessarily relied on proof of circumstances. These embraced very many of such as would be expected on that theory, but hardly on any other, as, known insolvency at the time of the pretended purchase, his indebtedness being largely due to near relatives on old transactions of doubtful odor; unreasonably large purchases in the aggregate, but of moderate amounts of many dealers, recently made; the execution of judgment notes sufficient to cover his stock, of which five-sixths in amount were to these relatives, after the goods were shipped on his order from Cincinnati and before they arrived; judgments soon after confessed on these notes; the conveyance to his brother, at the same time, of his valuable residence property, in expressed consideration of indebtedness due him, and the transfer of all his other real estate (in Missouri) and all his old'notes and accounts to apply on debt to the bank, leaving nothing visible out of which plaintiffs and other creditors could realize their claims; the purchase of' his stock from the execution creditors who had bought under judgments confessed on the notes referred to, at a large discount, by his son-in-law, whose means would hardly warrant it; and the resumption of business on the old stock with Ensei in charge as his manager. These are the principal facts which, with many suspicious incidents, plaintiffs claim to have shown and urge as indicating his intention not to pay. They were all supported by proof—-many being established undeniably by records and documents in evidence. They were clearly competent as tending to prove the intention charged, and were of the only bind of proof of which such an intention is susceptible.
We do not say that any of them, if proved, were sufficient to establish it, nor express any opinion as to the weight of all combined; but they were proper for the jury to consider, and to determine their weight. Nor do we overlook the facts that Ensei claimed he was not insolvent at the time he ordered these goods, and that the amount of his recent purchases was not unreasonably large, in view of trade prospects, and that evidence was introduced to explain other suspicious circumstances. But this conflict of evidence as to facts, and these differences as to the significance of those not contested, brought the case all the more clearly within the exclusive province of the jury. Eor a just finding upon these points the jury certainly had the best advantages. They saw and heard Ensei testify. He was the most prominent if not the most important witness in the case. His manner on the stand clearly challenged and must have received their closest attention and most careful consideration. It would be presumptuous for us to substitute our best estimate of the bearing and weight of his testimony. And so of the other witnesses.
The objections urged to the rulings of the court were not many, nor in our opinion very serious. Ensel’s agreement with the bank was competent, as tending to show that his real estimate of the value of the property he transferred to it was too far below what- he stated on the trial, where his solvency at the time was in question, to be accounted" for on any supposition- consistent with that of his honesty or truthfulness.
Hpon a question of fraudulent intention, such as was here charged, a wide range of inquiry must be allowed. The purchase of the stock from the judgment creditors by Stern, and its subsequent management by Ensel, may be regarded, in view of his relations to the other parties and to the property, as part of the res gestae. Besides, the failure to renew the motion to exclude the evidence on that subject, may well be treated as an acquiescence in its admission.
We do not think the instructions fairly subject to the criticisms of counsel, and oh the whole see no sufficient reason for reversing the judgment. It will be affirmed.
Judgment affirmed^