| Ill. | Apr 15, 1862
It is insisted that the sale by George W. Nelson, to plaintiff in error, was fraudulent and void, it having, as it is urged, been made for the purpose of hindering and delaying creditors. Questions, arising under the statute of frauds, both in this country and Great Britain, have been perhaps more numerous than under any other statute. Owing to the endless variety of the modes adopted, by which to cover property, and prevent its being reached by creditors, it can hardly be expected that courts can ever, by decision, settle all questions which may arise in such cases. All of the forms usually employed by the honest and upright, and such as are universally adopted by business men, are readily employed by the dishonest and corrupt, to cover the most fraudulent transactions. On the facts presented in the record, two juries, probably equally intelligent and upright, have arrived at opposite conclusions.
Upon the most careful examination which we have been able to bestow, we are satisfied that the jury was not warranted in this case, from the evidence, in finding the transaction fraudulent. It is in proof, that sales of stocks of goods not unfrequently occur, without an invoice being taken. The evidence shows, that the sale was for a sum that in every respect seems to be fair. The price paid was neither so large or so small as to excite suspicion that the sale was only color-able. There does not seem to have been any unusual degree of haste in consummating the sale. Nor was there any secrecy attending the transaction. The fact that the sale was on a credit, is not evidence of fraud, nor was the time given for payment unreasonable. The fact, that the sale was made to a relative is not unusual, and is not a badge of fraud. Nor can fraud be inferred from the fact that the vendor was indebted at the time he made the sale. He most clearly had the right to transfer the notes to his father, to whom he was indebted in a much larger sum, and there is no evidence in this record, that his father’s claims were not perfectly just. These facts, whether considered separately or together, we think, fail to establish fraud in the sale.
The evidence offered to prove what directions were given by plaintiff in error, to the drayman, where the goods were being delivered at the depot, we think, were a part of the res gestae, and, if pertinent, were properly admissible. They were given at the time of the sale, before suit was instituted, and before it could be known that any contest would arise, and at a time when no motive is perceived why false statements should have been made. Still their admissibility would depend upon whether they were pertinent to the issue, and as it was not disclosed what they were, it cannot be seen whether the court erred in rejecting the evidence.
The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.
S. Smith et al., Plaintiffs in Error,
v‘
O. S. Kelson, Defendant in Error.
) f )
The facts in this case are the same as the foregoing, but the finding of the jury was for the plaintiff below. The reasoning in the above opinion applies to this case in every particular. The judgment of the court below is therefore affirmed.
Judgment affirmed.