159 F. 684 | 2d Cir. | 1908
In view of the thorough examination which the questions involved in this controversy received when they were before this court a year ago, but little need now be added. In the Chesebrough Case the court said:
"We are of the opinion that a jury would have been justified in finding that the mortgaged premises were not of sufficient value to have enabled the trustees to replace the existing mortgages with new mortgages for the same amount, notwithstanding the presumptions to the contrary arising from all the surrounding fads. * * * As regards No. 32, there was a fair question for a jury upon the issue of fraud, and, as the defendant was doubtless chargeable with constructive notice of all the matters of record affecting the title to any part of the premises, there was a question for the jury upon the whole case. But, as we have indicated, the case was not one in which there was no evidence to support the finding of the trial judge.” 151 Fed. 1004, 81 C. C. A. 184; 151 Fed. 1006, 81 C. C. A. 192.
Each party had requested the trial judge to direct a verdict, which was tantamount to a request that he find the facts, and therefore his finding was upheld; there being evidence to support it. In the case at bar the same request to direct a verdict had been made by each party, and this court said:
“If there was a question of fact for a jury, the ruling of the trial judge was correct. We think there was such a question, and , that in view of our decision in the Chesebrough Company Case any detailed statement of the facts or further discussion of the legal question involved would serve no useful purpose.”
Although this language is not entirely clear, yet, when considered in connection with the opinion in the Chesebrough Case, there can be little doubt as to-its meaning. We think the court intended to say that, although there was a question for the jury, both sides requested the trial judge to decide it, and he had decided it correctly. On the trial which is now under review no such request was made by the plaintiffs, and the question was submitted to the jury. We have read with care the clear and painstaking charge of the trial judge, and find no error which warrants the reversal of the judgment.
In a transaction occurring 45 years ago, where all the principal participants are dead, and where a charge of actual fraud is made against parties whose motives can only be ascertained from the few acts of commission and omission which are proved, the jury must rely largely upon the presumptions which may be drawn from the established facts. In calling the attention of the jury to these presumptions pro and con, in tracing them, to their logical conclusions, in directing the attention of the jury to the relations between the partiés and the improbability that fraud would be attempted in such circumstances, in all this we think the trial judge did not trespass upon the province of the jury, especially so in a tribunal where the judge is not prohibited from expressing his opinion upon the facts. Where a fact was proved from which two inferences could be drawn, one tending to establish fraud and the other innocence, it was quite within the province of the court to call the attention of the jury to the latter probability or possibility.
It is argued by the defendants in error that the evidence produced by the plaintiffs in error failed to prove actual fraud, and that a ver
The judgment is affirmed.