19 Cal. 278 | Cal. | 1861
Field, C. J. concurring.
This is an action to set aside certain judgments confessed by two of the defendants, Harris and Morris, in favor of the defendants Davis, Galland and Goldman, respectively. It is alleged that there was no consideration for these judgments, and that they were confessed for the purpose of hindering, delaying and defrauding the •plaintiffs and other creditor? of Harris and Morris. The complaint contains the additional allegations of insolvency, etc., necessary to entitle the plaintiffs to recover, and upon the evidence adduced at the trial, the Court below granted the relief asked. The appeal brings thexentire case before us for review, and upon examination of the record, we are satisfied that so far as Galland and Goldman are concerned the judgment should be reversed. It appears .that Harris and Morris were justly indebted to them in the amounts covered by the confessions in their favor, and the alleged want of consideration is expressly negatived by the findings. This is a complete answer to everything charged against them in the complaint, and the conclusion that the object was to assist Harris and Morris in forcing a compromise with other creditors, is wholly immaterial. In order to render the objection on this ground available, it was necessary to plead it, and it is not sufficient that an intent to hinder,'delay and defraud is averred in general terms. This averment amounts to little more than a declaration that the parties rely upon the statute, and the complaint would have been as perfect without it as it is with it. Even regarding it as the statement of a fact, it .is too general and indefinite for any effect to be given to it as a pleading; and we do not propose to depart from the rule laid down in Macey v. Kinder, (7 Cal. 206) and in Harris v. Taylor (15 Cal. 384).
The result is, that as to Galland and Goldman, the judgment must be reversed, and in view of the evidence in the case, we are of opinion that a judgment should be entered in their favor. Their debts were honestly due, and we see nothing in the circumstances from which it can be inferred that their object was to assist Harris and Morris in obtaining an undue advantage of other creditors. They desired to place themselves in a position to secure the payment of their demands, and all that appears beyond this is, that they were willing to extend to Harris and Morris whatever leniency they could consistently with their own security. It does not appear that the confessions given to them were to be used to influence negotiations with other creditors; and aside from the fraudulent motive imputed to them, it is not pretended that there was any illegality in the course pursued. They did what the law entitled them to do, .and it would be an act of gross injustice to deprive them of the fruits of their diligence upon a bare suspicion that they intended something wrong. There is not a tangible circumstance in the case irreconcilable with the presumption of good faith and fair dealing on their part.
In respect to Davis, the Court finds a want of consideration in accordance with the allegation of the complaint, and there is no doubt of the sufficiency of the evidence to support this finding.
The judgment is reversed as to Galland and Goldman, and the cause- remanded with instructions to the Court below to enter a judgment in their favor for costs. In other respects the judgment is affirmed.
On petition for rehearing, the opinion of the Court was delivered by Cope, J.—Field, C. J. concurring.
The petition for a rehearing in this case must be denied. We ordered a judgment in favor of Galland and Goldman, for the reason
Petition denied.