Parker v. Pattee, 4 N.H. 176

4 N.H. 176 | Superior Court of New Hampshire | 1827

Richardson, C. J.

delivered the opinion of the court.

It must be now considered as settled law in this state, that when goods are sold by a person in debt and a bill of sale absolute on its face given, any secret reservation of an interest in the goods to the seller, must be considered with respect to his creditors, a fraud, and as to them will render void the contract. The grounds and reasons of the law on this point are stated and explained in Coburn v. Pickering, 3 N. H. Rep. 415, and need not be here repeated.

The question, which this case presents for our decision, is, whether when goods are sold by a person in debt and a bill of parcels given by him acknowledging a purchase of the goods and the receipt of payment, a secret reservation of an interest in the goods to the seller, will render void the contract as to creditors ? Or in other words, the question is, whether the same rule of law applies where a bill of parcels is given in such a case as where a bill of sale is given ?

The most material distinction between a bill of sale and a bill of parcels, is, that the latter does not purport to contain the whole contract, and either of the parties to it is at liberty to explain fully the nature of the contract. 2 N. H. Rep. 506, Wallace v. Rogers. But a bill of parcels is prima facie evidence against him who signs it

The reason why the law denounces as wanting in good faith and fraudulent, a bill of sale purporting an absolute conveyance of property, but attended with a secret trust, is, that it holds out false colours ; that it is evidence to prove the contract to be different from what it is in reality, and is calculated to deceive and mislead creditors and may be used for that purpose. And the law presumes, that he who buys goods of a person in debt and takes evidence of the contract which is in its nature false, intends to use it for the purpose of deception, and to defeat that purpose declares the contract to be void for that cause.

The principle does not rest then upon the nature of the written instrument, but upon its tendency to deceive. And we have no doubt, that a sale without any written contract, but declared before witnesses to be absolute, when in fact attended with a secret trust, is as much void as if a bill of sale were given, And a bill of parcels stands on the same ground. Indeed a bill of parcels is, perhaps, better calculated to deceive than a bill of sale, which has been so often used for fraudulent purposes as to have become somewhat suspicious.

The law on this subject is not unreasonable. To guard against fraud it requires certain signs of honesty. One of these signs is that the contract in these cases, if reduced to writing, or in any way made public, shall be truly stated and so as not to be calculated to deceive and mislead.

If the intent and purpose was honest and fair in the transaction, we are now examining, why did the plaintiff take a bill of parcels ? It is admitted that he only took the goods to sell and account for the proceeds. If all was bom fide done, why not state the truth ? No explanation of this course has been attempted. No reason is suggested why a bill of parcels was taken by the plaintiff, and we are clearly of opinion that the sale' must be considered as fraudulent with respect to creditors.