33 Kan. 252 | Kan. | 1885
The opinion of the court was delivered by
This was an action of replevin, brought by Nathan Gollober in the district court of Clay county, to recover a stock of goods of which he claimed ownership and right of possession through a transfer from the firm of Jack-man & Robinson. The partnership of Jackman & Robinson was engaged in the grocery business in Clay Center, and becoming financially embarassed and being pressed by creditors, sold their entire stock of goods and unsettled accounts to the plaintiff, on the 9th of January, 1883. The defendant Martin, who was the sheriff of Clay county, took and was holding possession of these goods under an execution issued upon a judgment rendered against Jackman & Robinson in favor of one of their creditors. The defendant levied the execution upon the goods as the property of Jackman & Robinson, and contended that the sale to plaintiff was fraudulent and void as against the creditors of the vendors.
The principal question in the case was as to the validity of this sale. A trial was had before the court with a jury, and a verdict in favor of the defendant was returned. The court refused to set aside the verdict and grant a new trial, and the plaintiff, excepting, brings the case here for review. He makes complaint of some portions of the charge of the court., and also contends that the verdict of the jury is unsupported by the evidence. Among the instructions given was the following:
“A sale made out of the usual course of business is evidence of fraud. Whatever is notice enough to excite the attention and put a party on his guard and call for inquiry upon the part of a prudent man, is notice of everything to which inquiry would lead.”
A departure from the usual course of business in the transfer of property has uniformly been held to be a suspicious circumstance, a badge of fraud, to be considered in determin
It appears from the testimony given in the case, that before the transfer was made, the plaintiff was apprised of the fact that Jackman & Robinson were in failing circumstances, and were being sorely pressed by their creditors; that within a few hours after being so informed, he purchased the stock of goods and a lot of unsettled accounts, without any inventory or ap-praisement thereof, making only a superficial inspection as he passed through the store-room and cellar where the goods were kept. He was not engaged in merchandising, and could have had but an imperfect notion of the value of the goods and accounts. This conduct was certainly a departure from the natural and usual course. Men do not usually buy a stock of merchandise made up as this one was, of a great number and variety of articles, without taking a detailed account and inventory of the same; and we have no hesitation in saying that the testimony in the case fully justified the court in the instruction given. The court did not assume or intimate, as counsel seem to infer, that the sale was made in an unusual manner, nor that the transaction between the plaintiff and Jackman & Robinson constituted a fraud upon the creditors of the latter. These questions were left to the jury, and while their attention was called to the rule that certain circumstances have a tendency to show fraud, the instruction will not bear the interpretation that such evidence or badge of fraud was conclusive, or could not be overthrown by explanatory proof.
The plaintiff testified that the transaction was evidenced by a bill of sale which was in testimony before the jury. The court, referring to this bill of sale, instructed the jury that “the mere production of a bill of sale which would be sufficient as against the seller, is not sufficient as against the creditor, and he must supplement that bill of sale with proof of
It is finally urged that the verdict is contrary to the evidence. Under the facts and circumstances surrounding the sale as disclosed by the record, and applying the rule govern
These circumstancs, together with others that need not be mentioned, tend strongly to impeach the;sale. Some explanation of these circumstances was made, or attempted to be made,
The judgment of the district court will be affirmed.