120 Iowa 597 | Iowa | 1903
A firm, styled “Crawford & Young,” owned a small stock of goods in Council Bluffs, and were indebted in the sum of about $40 to the defendants John G. Woodard & Co. On August 1, 1900, plaintiff claims to have purchased the entire stock of goods from Crawford & Young, taking from them a bill of sale thereof, and to have gone into possession about three o’clock in the after-' noon of that day. Later in the day Woodard & Co. sued out a writ of attachment, under which Baird, as constable, seized a part of the goods. Plaintiff thereupon brought this action to recover the value of the property taken and for exemplary damages. Defendants deny the purchase by plaintiff, and allege that the pretended sale to him was made in fraud of the creditors of Crawford & Young. Plaintiff recovered judgment for the value of the goods, $84.20, without other damages, and defendants appeal. The errors alleged relate wholly to rulings by the trial court upon the admission of testimony and to instructions given and refused.
Defendants’ collector, as a witness in their behalf, testified to presenting the claim to Crawford & Young for payment about nine o’clock a. m. of the day of the at-
Other objections made to.the court’s rulings are of a trivial character, and involve no prejudicial error.
As to the instructions requested by the appellants, it is sufficient to say that, so far as they involve correct principles, they are embodied substantially in the charge 2 instruc- “and”'for6 °f . 'or'” the court. In paragraphs five and six of the charge the court, in attempting to state the familiar rule as to sales and conveyances made in fraud of creditors, said to the jury that if the parties, in making such purchase and sale, intended-thereby “to hinder, delay, and defraud the creditors of Crawford & Young,” the transaction was void as against the writ of attachment. This expression is criticised because of the use of the word “and” instead of “or” in the quoted sentence. It will be conceded that to establish fraud, as that word is here used, the law required the creditor to do no more than prove the intent of the parties to hinder or to delay or to defraud, and that, if either of these conditions be established by the evidence, the attachment must be sustained. It follows that, if we look alone to this particular clause of the charge, it -must be held erroneous. We think, however, when the entire charge is read, it is quite clear that “and,” as. here employed, has the force and effect of “or,” and that the jury could not have have been misled by it. The. jury were elsewhere clearly told that, if they found from the evidence “that Crawford and Young did make the transfer to plaintiff for the purpose of hindering, delaying, or defrauding their creditor,” and that palintiff participated in such wrongful design, or had knowledge of it, or knew facts and circumstances from which, as a reasonable man, he ought to have inferred the same, then he was not en
The instructions as to the manner and sufficiency of a levy of an attachment are not objectionable. Appellant, in discussing this question, assumes as undisputed that a levy was in fact made Before any change occurred in the possession of the goods, and without any notice of the plaintiff’s purchase. The record does not bear out this assumption. Both propositions are the subject of dispute in the testimony, and were properly submitted to the jury.
It is further said the court erred in instructing the jury upon the plaintiff’s claim for exemplary damages.
The judgment of the district court is aeeiRMed.