1 Indian Terr. 458 | Ct. App. Ind. Terr. | 1898
(after stating the facts.) At the trial of this case in the court below the plaintiffs submitted to the jury, as a part of the testimony relied on to sustain their cause, the deed of assignment from J. N. Worthy, the defendant, to Lee Cruce, the interpleader. After the deed was read, the counsel for the defendant and interpleader moved the court to strike said deed from the record, which motion was allowed, to which ruling of the court the plaintiffs excepted. After the plaintiffs’ case was closed, Lee Cruce, the interpleader, introduced the same deed in evidence
The assignments of error, from the third to the eighth,. inclusive, relate to the introduction of certain testimony at the instance of the interpleader, and to the manner of conducting the examination of certain witnesses called to impeach the credibility of one of plaintiffs’ witnesses. There was much of error and informality disclosed in the objections and pointed out in the assignments of error.' But we do not see how the rights of the plaintiffs were prej udiced \n any manner. The evidence which was really material reached the jury, and matters which were immaterial do not
The ninth and tenth assignments of error are as follows: “The court erred in charging the jury as follows: ‘Gentlemen of the jury: The plaintiffs in this case, Noble Bros., instituted a replevin suit against Mr. Worthy, the defendant, in that suit to recover a certain lot of goods, wares, and merchandise which they allege was in the possession of .Mr. Worthy, and which Mr. Worthy contracted to buy from Noble Bros.; the plaintiffs alleging that he never acquired title to the merchandise in controversy, and, as a reason why he never acquired the title, they assert — First, that the goods were not paid for by Mr. Worthy; and, secondly, he obtained a credit on false and fraudulent statements and misrepresentations as to his solvency and condition to meet his bills.’” “The court erred in the following portion of his charge to the jury: “Now, if you believe from the testimony — if you should conclude from the testimony — that the defendant in the original suit, Worthy, acquired possession of these goods, contracted to pay for them, and did not pay for them, and that he secured his purchase — the purchase of these goods, wares, and merchandise — by means of false and fraudulent statements and representations as to his solvency and ability to pay for the same, then it would be your duty to find for plaintiffs. If, on the contrary, you come to the conclusion that this trade was made bona fide between Noble Bros, and Mr. Worthy; that he bought the goods in good faith, and didn’t resort to any fraudulent device and misrepresentations whether they were paid for or not, — he would be entitled to recover. If he bought any portion of
The instructions which plaintiffs requested, and whicl were refused, enumerated certain facts which were con tro verted, such as the following: If the defendant fraudu lently omitted from the statement of his liabilities certaii debts in favor of his wife and son-in-law; if the plaintiffs ap plied to the defendant for a statement of his financial condi tion as a basis for future credit, and defendant made a fals statement of his financial condition in order to procure credit if plaintiffs applied to defendant for a statement of his finau cial condition, it was the duty of the defendant to render true and correct statement of his condition, and if defendan fraudulently omitted a material part of his indebtedness r
We are of the opinion that the general charge of the court is all that is required, and that its refusal to give the special instructions requested is not reversible error. Th general charge was broader than all the specific instruction combined. The jury were instructed, if the defendant pro cured the goods by false and fraudulent representations a to his solvency and ability to pay for the same, and 3 plaintiffs relied on such representations, and thus extende the credit, the plaintiffs were entitled to a verdict in thei favor. No intelligent jury could be misled by the generi instructions which were given by the trial court. Nor wa it error in the trial court to refuse to submit to the jury tb definition of the word ‘ ‘insolvent, ” which plaintiffs requesi ed. Webster’s Dictionary gives the following definitions ( the word: “(1) Not having money, goods, or estate suffic ent to pay all debts; as an insolvent debtor. (2) Not suffic ent to pay all debts of the owner; as an insolvent estate. This definition differs materially from that which plaintrf requested the court to give. Insolvency does not mean i: ability to pay “current demands as they mature,” but
The instructions given by the court as to goods pur-hased before the alleged misrepresentations were made is ufficiently definite to authorize the court to refuse the giv-lg of the third special instruction asked. The fourth ,nd the fifth special instructions requested are sub-Emtially covered by the general charge of the court which is given. The sixth special instruction is defective in is: that it is not sufficiently definite as to the fact which mid constitute fraud upon the plaintiffs. It should have Leged that if the jury found from the evidence that the de-mdant was insolvent at the time he made the statement as ) his financial condition, and that the statement that he id make as to his financial condition showed him to be solv-it, and that such statement was fraudulently made in order ) secure credit thereby, and that the plaintiffs relied pon the truth of such statement and extended the
Several of the assignments of error relate to the form of the verdict. This was an action of replevin. Attention is called to the following sections of Mansfield’s Digest of the Laws of Arkansas, in force in the Indian Territory: Section 5145: ‘ ‘In actions for the recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property.” Section 5181 of same statute reads: . “In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention. Where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the
The twenty-first assignment of error in this case is as iollows: “The trial court has no jurisdiction of the inter-