15 Colo. App. 520 | Colo. Ct. App. | 1900
This is one of those contests between creditors of an insolvent debtor which frequently develop surprising differences of recollection and wherein the parties in attempting to save their claims sometimes depart from the lines established by high commercial honor. It looks very much as though the appellant had not only attempted, but succeeded in getting the better of Mrs. Hinda Solomon in the struggle for preference. Notwithstanding this fact we are not able to see that the conduct of Mrs. Solomon’s agents in the transaction would be wholly exempt from criticism. The judgment which possibly worked out substantial justice cannot be permitted to stand.
This narration covers all the substantial facts which we need to state for the purposes of the decision. We shall pass over most of the errors which the appellant has dis
We are quite of the opinion it was competent to prove what was said by the person apparently in charge of the store after the transfer, although he happened to be the brother of the appellant and although there was no proof that he was the appellant’s agent for any specific purpose. He was there in the store and apparently packing up the goods and when the Solomons inquired of him what he was doing and he stated it, the transaction was such as to make the testimony entirely admissible. We entertain the same opinion regarding the telegram because it contained by its terms a direction to state to Solomon that an explanation of the shipment of the goods to Muscatine or away from Denver would be made in a letter which was to follow. This very distinct reference to Solomon would undoubtedly make the telegram admissible.
We think that the objections to the answers made in the depositions were well sustained for in reality they amount to nothing except statements by Kaufman of what somebody else had said to him in regard to the attachment of the stock and advising him to come at once and arrange matters. None of these errors are of much significance except the first two. As regards the depositions they can be easily fixed for the subsequent trial. We might have some difficulty with the instructions but for the fact that they were given orally and the only objection taken was a general one at the conclusion of the charge and in the general form, to the giving of which and to every one of which the plaintiff excepted. The charge was an entity, it was not divided into paragraphs or numbered nor did it consist of specific parts or specific propositions, but was given as a whole and covered the entire case. As has been repeatedly decided by appellate tribunals objections of this sort are wholly unavailable to save any question for the purposes of an appeal.
Coming now to the fundamental question which we think controls the matter we may very briefly state that Jacob Sol
It is equally clear that the transfer of the note did not carry with it the right of action which had accrued to Mrs. Solomon by reason of the fraudulent transfer, and that there could have been no such assignment of title as to vest it in Jacob and authorize him to bring suit. In other words, this sort of an action to set aside a claim on the ground of fraud seems not to be assignable. There was no attempt to transfer the right to maintain the action because of the fraud, and it is quite clear the indorsement of the note would not carry with it any such right. We refer to the point because it seems to be under the authorities quite clearly conclusive of Jacob’s rights. Zabriskie v. Smith, 13 N. Y. 322; Carroll & Lyon v. Potter, Walker’s Chan. 355; Morris v. Morris, 5 Mich. 171; Dickinson v. Seaver, 44 Mich. 624; Brush v. Sweet, 38 Mich. 574; Foster v. Wight, 123 Mass. 100.
These principles which are well established by the cases
Reversed.