60 Neb. 1 | Neb. | 1900
In 1893 one George R. Fouke was engaged in various lines of business in Liberty, Gage county, this state. In that year he failed, his liabilities being far in excess of his assets. Tie sold practically all of his personal property to the Henney Buggy Company, one of his creditors, the consideration for such sale being the cancellation of his debt to it, amounting to over $1,800, and the payment to him by it of the difference between the amount of such debt and the agreed value of the property, such difference being $300. Fouke was then placed in possession of said property, consisting of stocks of goods of different character, as an employee of the company, and a former employee of his was appointed its general agent in the management and disposition of the same. After this sale, some of the other creditors of Fouke attached a portion of said goods; others obtained judgments against him, and levied executions upon the goods, the value of the goods so levied on being, according to the agreement of the parties hereto, $1,000. The goods so levied on were, while in the hands of the officer holding such writs, replevied by said Henney Buggy Company, it claiming title to them by virtue of said salo to it by Fouke. The defendant officer answered, setting-up the fact that he held said goods by virtue of levies under said writs, and that the sale by Fouke to the buggy company was fraudulent and void as to the other creditors of Fouke. On this issue the case was tried in the lower court, resulting in a verdict and judgment in favor of the defendant officer, and said buggy company comes to this court by petition in error from such judgment.
There are over 150 errors assigned in the petition in error, not all of them, however, being urged in the brief of counsel. We shall notice such errors as are urged in the brief, so far as they may affect this decision, it being; understood that others not noticed would not in anywise alter the conclusions arrived at by the court.
It is claimed by plaintiff that this case falls within the rule of Sunday Creek Coal Co. v. Burnham, 52 Nebr., 364. In that case the creditor had taken from the debtor, in full satisfaction of his debt, property of a value not materially or appreciably greater than the amount of the debt, and this court decided that, under such state of facts, the validity of the sale was not affected by the existence of knowledge on the part of such creditor of an intent on the part of the debtor to defraud his other creditors, provided such creditor did not participate in such intent. This is doubtless the rule, or rather an exception to the general rule, as hereinbefore stated. But a different principle applies where the creditor not only receives from the debtor goods equal to the amount of the debt, but goes farther and voluntarily takes an amount of property greater in value than suffices to satisfy the debt, paying to such debtor the difference in money, at the same time having knowledge, or being in position to obtain knowledge, that such transaction would result in a fraud upon the other creditors. To the extent of the payment of the difference between the debt and the value of the goocLs, such creditor becomes a voluntary purchaser, and must be governed by the'rule of
Numerous exceptions are taken to instructions given by the court below. Such objections are principally to those which announce a rule not materially differing from that hereinbefore stated, and we think that in none of them was any error perpetrated. To other instructions objections are urged that they are not sufficiently specific. If the instructions were open to these objections, counsel had ample opportunity to obviate such defects by proffering instructions which he may have deemed more definite, but as he failed so to do, such objections must be deemed to have been waived.
There are also numerous objections urged to questions propounded to said Fouke on his cross-examination, he having been called as a witness on behalf of plaintiff. Such objections are mainly to a class of questions asked him relative to the value of the property sold by him to said buggy company. Such questions took a wide range; but much latitude is permissible when a party to an alleged fraudulent transaction is upon the stand, and is being cross-examined by the opposite party. Further, as the sale by Fouke to the buggy company was, on the undisputed facts, fraudulent as to his other creditors, and therefore void, we fail to see how the evidence adduced could injuriously affect the plaintiff; hence, we are of opinion that no error could have accrued to it on the introduction of this testimony.
A careful examination of the record in the other respects complained of by plaintiff convinces the court that no prejudicial error occurred on the trial, for which reason the judgment of the lower court is
Affirmed.