13 Wash. 660 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
On April 9, 1891, one Isaac Korn was
-The complaint alleges facts sufficient to entitle the plaintiff to recover the value of the property therein described. The defendants in- their answer denied that plaintiff was the owner of the property described in the complaint or entitled to the possession thereof, and that it was of any greater value than $1,800; and alleged affirmatively, among other things, that the bill of sale by which the property was transferred to the respondent was made by Isaac Korn for the purpose of placing his property beyond the reach of his-creditors, and for the purpose of hindering, delaying and defrauding his creditors, and especially the defendants Snell, Heitschu & Woodward; and that the plaintiff accepted the bill of sale knowing that' it was made for the purposes aforesaid, with the intention and for the purpose of aiding said Korn to so hinder, delay and defraud his creditors; that after executing the bill of sale the said Korn remained in possession of the property and continued to sell the same and apply the proceeds thereof to his own use and benefit, and that the bill of sale was and is fraudulent and void as against the defendants. The plaintiff replied, admitting the execution of the bill of sale as alleged in the answer, but denying all other* new matter therein contained.
Upon the issues presented by the pleadings a trial was had to a jury, and at the close of the evidence the plaintiff presented to the court, as conclusions of fact from the evidence^ that the plaintiff was, on the 11th
It is insisted with much earnestness by the learned counsel for appellants that there was some evidence properly presented to the jury which tended to support the allegations of fraud set forth in defendants’ answer, and that the court, therefore, erred in taking the question of the bona fides of the sale by Korn to the respondent from the jury. In support of this contention it is urged that the .action of the court was in contravention of §21 of art. 1, and §16 of art. 4,
A careful examination of the evidence adduced upon the first trial discloses the fact that it was essentially the same as that given on the second, and therefore the court committed no error in declining to submit to the jury the question of the bona fides of the respondent in purchasing the property in controversy. That question had been previously determined, under a substantially similar state of facts, by this court, and that decision was conclusive upon the trial court.
It is claimed, however, by appellants that the notes which were surrendered by respondent to Isaac Korn upon the execution of the hill of sale and which were introduced in evidence on the second trial, but not on the first, supplied the “ missing link in the chain of evidence of fraud.” But we cannot assent to this proposition. These notes, we think, in no way contradicted the oral testimony in the case, though it is urged that the fact that the Bories and M. Korn notes were dated but three days before the execution of the hill of sale tends strongly to contradict the statement of the respondent that when he received them he had not conceived the idea of obtaining the stock of goods from Korn. But whether he had or had not such an idea at that time seems to us quite immaterial. The point is, did he purchase in good faith and for a sufficient consideration; and we think the evidence shows that he did. All that was said upon this point in the former opinion of this court is equally pertinent and
Even if this cause were now hére for the first time we would be constrained to hold that the ruling of the trial court was fully justified by the law and the evidence.
The judgment will therefore be affirmed.
Hoyt, C. J., and Scott, J., concur.
Dissenting Opinion
{dissenting). I am compelled to dissent from the conclusion announced by the majority. I think the introduction of the notes mentioned in the majority opinion relieved the case of the objection urged by this court in 6 Wash. 542 (33 Pac. 830). My own opinion is that the appellants made out a case of fraud; but whether they did or not, they certainly introduced competent testimony tending to prove fraud, and the province of the jury to weigh the .testimony should not have been interfered with by the court.