The debt, for which the defendant was sued in this action, arose from a contract made nominally with Gill & Bell. The plaintiff seeks to recover on the ground that he was the real party, Gill & Bell being merely his agents in the transaction. The question to be submitted to the jury was whether that was the true relation of the parties, or whether it was a pretended and fictitious relation assumed to answer some purpose of Gill & Bell, while they in fact were the owners of the whole interest in the property and in the business which they carried on.
There had been in June, 1870, a formal bill of sale of the property of the firm to the plaintiff, and a lease of the yard in which their business was done; and Gill & Bell for a time, and afterwards Gill alone, had conducted the business as the plaintiff’s agents. The debt of the defendant was contracted while this condition of things existed, though, as he offered to prove, he had no knowledge of the agency.
The defendant contended, and offered evidence tending to prove, that the sale was “ a sham; ” that Gill & Bell continued to be the beneficial owners of the stock and business, and carried on the business for their own benefit; that the plaintiff paid no consideration for the purchase and had no interest in the business and that the contract with the defendant was not only made with Gill & Bell, but was in reality for their benefit, and that they furnished the labor and materials for its execution.
But, upon the question whether there was an actual sale, evidence that Gill & Bell were embarrassed, or annoyed by their creditors, was competent, as tending to show the existence of a reason and motive for making a fictitious and colorable transfer of their property, as the defendant alleged this to be, in order to protect themselves against further trouble of that sort, and still continue in the control and beneficial use of it and of their business. The proposition stated by the court may have been entirely correct in itself; and, in the aspect in which the case was presented by the pleadings and evidence, we are inclined to think it was so ; but the evidence offered bore upon the very hypothesis upon which it rested, to wit, an actual sale. The ruling and instruction were apparently made upon the supposition that the only effect of the evidence would be to sustain a defence on the ground of fraud upon creditors. The court may have been misled by an inexplicit or incomplete statement of the purpose, by vhich the offer was accompanied. But, as we find it in the exceptions, the terms of the offer do not imply that it was limited to the purpose of such a defence. The exclusion of the evidence was therefore erroneous.
The other questions argued before us do not seem to be presented, upon this bill of exceptions, in such manner as to make any decision of them now of any advantage in a new trial.
Upon the single point which we have considered above, the
Exceptions are sustained.