Aсtion for the recovery of a sum of money for the seizure and conversion of a рortion of a stock, of goods levied on by defendants under a writ of attachment and claimed by plaintiff to have belonged to him.
I. The evidence introduced was on the point of the bonafides of the sale of goods made by Rhodes, the thеn owner, to plaintiff. On this point there was evidence
II. On the point of the admissibility of еvidence there was no error. The mortgages on personal property offеred in evidence made by third parties to plaintiff, during the years 1874 to 1881, had no sort of bearing as to the quo animo of the transaction then being litigated,, and were, therefore, wholly inadmissible. This rule is announсed in Hubble v. Vaughan,
III. The fifth instruction given at the instance of plaintiff was as follows :
“The jury are instructed that although they may believe from tjie evidence that said Wm. Rhodes sold the goods mentioned in the evidence to plaintiff for the purpose and with the intent to hinder, delay and defraud his сreditor’s, and that said sale and delivery of said goods did in fact hinder, delay and defraud the creditors of said Rhodes, yet they will find for the plaintiff unless plaintiff bought and took possession оf said goods with the intent, or for the purpose of. hindering and delaying or defrauding the said -creditors.”
And the fourth instruction given by the court of its own motion was in these words :
“The jury are instructed that a fraudulent intent either in seller or purchaser, need not be proven by direct and positive proof, but may be proved by facts and circumstances surrounding the transaction. If, thеrefore, the jury believe from all the facts and circumstances detailed in evidenсe that the said Rhodes made the sale to plaintiff with the intent tó hinder, delay or defraud his creditors, and that the
It will be readily seen that these instructions, when thus placed in juxtaрosition, were plainly inharmonious, the one requiring a verdict for the plaintiff unless he “bought and took possession of the goods with the intent or for the purpose of hindering and delaying or defrauding the said creditors,” the other requiring a verdict for the defendant if “Rhodes made the sale to plaintiff with the intent to hinder,” etc., and “the plaintiff at the time of his purchase knew of such intent,” etc. In the one instance mere knowledge on the part of plaintiff of Rhodes’ fraudulent intent is sufficient to defeat his action, in the other he must have been a participant in that fraudulent intent in order to defeat his recovery. These instructions are clearly irreconcilable and cannot stand together. It is impossible to tell which one the jury took for their guidance; if they took the fifth they must have ignored the fourth, and if they took them both togеther their verdict could not have been anything else than guess work. This is not a case where, as sоmetimes happens, one instruction supplies an omission in another, but a case where elements are combined in one instruction totally repugnant to those contained in another given at the same time.
. The fourth instruction was the proper one to givе, and the fifth one for the plaintiff should have been refused, the doctrine contained in thе latter instruction being only applicable to a creditor who buys from an embarrassed debtor, and not to a mere purchaser from such an one. This distinction is clearly pоinted out in Shelley v. Boothe,
IY. It is claimed that the fifth instruction for the plaintiff already commented on was сorrect because- it
For the errors already mentioned the judgment is reveesid and the cause remanded.