12 Utah 172 | Utah | 1895
This is an action by the plaintiffs against the Earls Furniture & Carpet Company, a Utah corporation, and I. A. Benton, as United States marshal, for the recovery of certain goods sold to the defendant company during the summer and fall of 1892, alleging that when the defendant company purchased the goods it was insolvent, and purchased the goode with the intention at the time of the purchase not to pay for the same. The defendant I. A. Benton, United States marshal, who had taken the property under execution issued upon judgments by confession of the Earls Furniture & Carpet Company to John T. Ballard and J. A. Earls, filed his answer denying the allegation of fraud. This was the only question tried and
The points relied upon for a reversal by the appellants may be divided in two groups; and for the purposes of this decision the first and second points relied upon may be considered together, and the third, fourth, and fifth may also be considered together. Taking up the first of these, it is claimed that the court erred in permitting to be read to the jury the twenty-third and twenty-fourth interrogatories of the deposition of James W. Lynd on behalf of the plaintiffs, and in overruling the defendants’ objection thereto, and in permitting the answer to be read over the objection of the defendants thereto; the said interrogatories, the objections and answers thereto, being as follows: “Int. 23. Did the defendant company ever inform you that on the 10th day of June, at a special stockholders’ meeting, duly called for the purpose, it was resolved that the sixth article of the articles of association of the company was to be so amended as to read as follows: ‘Article 6. That the amount of the capital stock of said corporation shall be $25,000, which shall be divided into shares of the face or par value of $25 each;’ and that said resolution amending article 6 was duly filed with the secretary of the territory on June 14, 1892?” — to which interrogatory the defendants objected on the ground that the same was immaterial and' incompetent, which objection was overruled, and the answer thereto was read as follows, to wit: “ The defendant company did not inform us of the change in the articles of association as set forth in this interrogatory.” “ Int. 24. Did the defendant company ever inform
The issue in this case was one of fraud in the purchase of the goods by the defendant corporation, the Earls Furniture & Carpet Company. The allegations of fraud are clearly sufficient to justify the introduction of the evidence complained of by the appellants. -This allegation of fraud in plaintiffs complaint is as follows: “That the defendant corporation was insolvent at the time of said pretended purchases, and when the defendant company obtained possession of said goods; and the fact of such insolvency was well known to the officers and agents of said defendant corporation when they made said pretended purchases and received said goods. That said pretended purchases were made with the preconceived intention on the part of the defendant company and its officers and agents not to pay for said goods, or any part thereof, by reason of said defendant’s insolvency and inability to meet its obligations, and for the purpose of cheating and defrauding this plaintiff of the purchase price of said goods. That the defendant corporation intentionally and fraudulently, and for the purpose of cheating and deceiving this plaintiff, and obtaining said goods without paying for the same, fraudulently suppressed and concealed from the plaintiff the fact that it was insolvent.” This allegation was denied in the
The third, fourth, and fifth points relied upon by the appellants for a reversal may be decided together, and were as follows: “That the court erred in instructing the jury that nine of their number might render a verdict, and in receiving as the verdict of the jury a verdict concurred in by only ten members of the jury; that the court