13 Colo. App. 467 | Colo. Ct. App. | 1899
On December 1, 1896, the John V. Farwell Company, a corporation, brought suit against John W. McGraw and Sanford T. Georgia, partners as J. W. McGraw & Company, who were dealers in furniture, to recover an indebtedness of $1,126.71, on account of goods sold and delivered by the plaintiff to the defendants between the 12th day of August, 1896, and the 15th day of October, 1896. A writ of attachment was sued out in aid of the action and levied upon a stock of goods of the defendants. The grounds of attachment, set forth in the affidavit, were that the defendants had fraudulently disposed of their property, so as to hinder and delay their creditors; that they were about, fraudulently, to dispose of their property, so as to hinder and delay their creditors, and that they fraudulently contracted the debts sued on, and by false pretenses and fraudulent conduct procured the property of the plaintiff. The defendants executed a forthcoming bond, and the goods were returned to them. They then traversed the affidavit for attachment. At the trial of the issues tendered by the traverse when the plaintiff rested, on motion of the defendants, the court ordered a nonsuit. Afterwards the cause was tried upon its merits, and judgment rendered against the defendants for $305. The plaintiff has brought the record here for review, alleging error in the proceedings Avhich resulted in the nonsuit.
The errors assigned go to the action of the court in refusing to receive evidence offered by the plaintiff. A witness for the plaintiff, Mr. Whitehead, who was a partner of the defendant McGraw, from May until September, 1896, after testifying that McGraw had made reports of his standing to several commercial agencies, was asked this question by plaintiff’s counsel: “ State what value he put upon that stock of goods to the mercantile agencies, if you know.” He was then asked this question: “ Do you know of any instance where the defendant has sold that stock of goods at less than the sale price, not counting the freight?” Each of these
Where it is impossible to say, from a question to a witness, whether the answer will be material or relevant to the issues, upon objection made, it is the duty of the party seeking to produce the testimony, to state what he proposes to prove by the witness, and, if necessary, to offer to connect the evidence proposed, with other proof, from which its relevancy or materiality will appear; and, in the absence of such statement, or such offer, it is not error to reject the evidence. Marshall v. Hancock, 80 Cal. 82; Boland v. Railroad Co., 106 Ala. 641; Ladd v. Coal & Mining Co., 66 Fed. Rep. 880; 1 Thompson on Trials, §684.
The witness Whitehead was asked whether he knew of any instance of McGraw selling that stock at less than the sale price, not counting the freight. What was meant by “ that stock,” is not entirely clear. But it appears that McGraw came to Cripple Creek from Chicago, in May, 1896, bringing a stock of goods, worth about $4,000. The witness either came with him, or followed him almost immediately. It was concerning that stock that McGraw made reports to the commercial agencies, — one before he left Chicago, — and, so far as appears, “ that stock ” did not include any purchases from the plaintiff. Presumably the purpose of the question was to elicit testimony in support of the charge that the defendants had fraudulently disposed of their property, so as to hinder and delay their creditors. Now, suppose that the witness had answered that he did know of an instance where McGraw had sold “ that stock,” wholly or partially, at less
In reference to the question put to Whitehead concerning the value McGraw put upon “ that stock ” of goods to the mercantile agencies, there is not much to be said. Waiving its indefiniteness as to time, and also the query whether it is competent to prove a report to a mercantile agency in that way, it called for no answer, which, without proof of other facts, would have been of any benefit to the plaintiff. The only allegation in the affidavit for attachment to which the question could have any reference, was the one that the de
Another question to which the court sustained objection, was the following, to the witness King: “ State fully what your instructions were, — what the defendant McGraw stated to you to do in carrying’ out your duties as salesman.” This was a very comprehensive question. A complete answer to it would, almost, necessarily, have embraced matters neither material nor relevant to the issues. It would probably have brought out' confidential communications from the employer to the employee, in which the plaintiff could not possibly be interested, and which outsiders had no right to know. King may have been instructed that certain specified persons were punctual and honest, and should have such credit as they might desire; while certain others were irresponsible and unscrupulous, and should have no goods without the cash.
Not only would instructions of such a nature be immaterial, but it would be taking an unwarrantable liberty with men’s business to permit them to be divulged. The impropriety of the question is apparent without argument.
In Shoe Co. v. Harris, 82 Tex. 273, Harris brought suit by attachment against Bonds & Lyon. The ground of the attachment, alleged in the affidavit, was that the defendants were about to dispose of their property with intent to defraud their creditors. Subsequently the Orr & Lindsey Shoe Company brought suit by attachment against the same defendants, alleging the same grounds. Both writs were levied upon the same property. The shoe company intervened in Harris’s suit, alleging that when his affidavit was made, the ground of attachment which it alleged was false, and known by him to be false. The purpose of the intervention was to have the attachment of Harris set aside as to the shoe company. The proof showed the following facts: Harris was the proprietor of the Harris Bank. The bank held the unpaid note of Bonds & Lyon. W. H. Lyon, a member of the firm, came to the bank with the statement that the firm was pressed on a debt of $2,000, and that the claim was in the hands of an attorney for collection. He asked the bank to loan the firm the money to meet the debt. The cashier declined to lend the money, but insisted that the bank should have security for the payment of its note, which was wholly unsecured. Instead of furnishing the security, Lyon remarked to the cashier, with great emphasis, that the firm had about $15,000 in notes and accounts, and that they would put the balance of the accounts into notes, and put them all into their pockets. The bank then commenced the attachment proceedings. The court held that the statement so made, amounted to a threat by the firm to put its assets beyond the reach of any process to which Harris might resort, and justified the attachment. The testimony connected the statement of Lyon directly with, and applied it directly to, the debt which Bonds & Lyon owed the bank. It was self-explanatory,
We have disposed of all the questions which counsel have discussed, and our conclusion is that the judgment was right, and should be affirmed.
Affirmed.