42 Ind. 121 | Ind. | 1873
The appellees instituted an .action against the appellant, and procured an order of attachment,by virtue of which personal property of the appellant was seized. He moved to dismiss the attachment proceeding. The motion was overruled. Issues of fact were formed in the áction, and on the affidavit for the order of attachment. There wras a trial by jury, resulting in a verdict for the appellees on both issues; a motion for a new trial was filed by the appellant and overruled, and final judgment rendered for the amount found, and for a sale of the attached property to make the judgment. Proper exceptions wére taken to the rulings of the court.
Several reasons are assigned for a new trial in the motion. We shall notice but two of them; that the verdict was not sustained by the evidence, and that the court refused to give to the jury relevant and proper instructions.
The errors assigned are, overruling the motion to dismiss the attachment proceedings, and overruling the motion for a new trial.
The objection is not well taken. Where the disjunctive or is used, not to connect two distinct facts' of different natures, but to characterize and include two or more phases of the same fact, attended with the same results, the construction contended for is not applicable. Drake Attachments, sec. 102.
The material point in the affidavit required by the statute is, that the party is about to dispose of property subject to execution, with the fraudulent intent to cheat, hinder, or delay his creditors. The manner of doing it is not material. Van Alstyne v. Erwine, 1 Kern. 331; The Commercial Bank of Manchester v. Ullman, 10 Sm. & M. 411; Bosbyshell v. Emanuel, 12 Sm. & M. 63; Hopkins v. Nichols, 22 Tex. 206.
The parties were dealers in lumber, the appellees in Michigan and the appellant in Goshen, in this State. He had purchased lumber of them on credit, and was unable to meet his payments as they became due. Unsuccessful efforts had been made to induce him to sell to them lumber at wholesale prices to pay their claim. They claimed that he agreed, at the time of making the arrangements for purchasing on credit, that he would at any time turn over the lumber to them, or enough of it to satisfy their demands against him. He denied it. He had promised to pay them from time to time, and failed from inability. He had also represented to them that he expected to receive money, when, as they attempted to show, he had no reasonable expectations of getting it. He caused an invoice of the lumber to be taken, a short time before the order of attachment was issued. There was evidence, tending to show that he was negotiating for a loan of money,
The appellant asked many instructions, all of which were refused. We do not deem it necessary to enumerate all of them. The second and third were as follows : 2. “ The fact that the defendant at the time he made the purchase from the plaintiffs promised that at any time that the plaintiffs might feel insecure, they should have the right to take possession of the defendant’s property, if you find such promise to have existed, and that the defendant refused to perform such promise, would not tend to prove that the defendant was about to sell, convey, or otherwise dispose of his property, subject to execution, with intent to cheat, hinder, or delay his creditors.
“ 3. The fact that a debtor, pressed by his creditor for payment of his debt, promised to pay him, when he had no reasonable expectations of being able to do so, or states to him that he expects to realize money from sources- not within his reasonable expectations, does not tend to prove that the debtor was then about to sell, convey, or otherwise dispose of his property, subject to execution, with fraudulent intent to cheat, hinder, or delay his creditors.”
The issue on the affidavit was whether the appellant was about to dispose of his property, subject to execution, with the fraudulent intent to cheat, hinder, or delay his creditors. His promises to allow the appellees to take possession of his property, or his promises to pay without reasonable expectations of being able to do so, or statements of his expectations of realizing money, could not tend to establish the issue. The one would simply show that he had broken his promise; the other, that he had not told the truth. The instructions should have been given.
The appellant was not bound to sell to the appellees, in order to pay or secure their claim against him. He was under no legal obligation to give them a preference over other creditors. Although there was no evidence that he was insolvent, nevertheless, such an act would have been an act of bankruptcy, under the bankrupt law.
The verdict in. favor of the appellees on the complaint is sustained by the evidence. The verdict on the affidavit is not. The appellees insist that under the motion no new trial can be granted on the latter issue alone. We think otherwise. The motion was for a new trial “ as well of the issue formed upon the attachment proceedings as of those formed upon the note and account, and all of them.” We think it may be regarded as a several motion upon the issues on the complaint and affidavit.
There are many other questions discussed with much ability by counsel, but we do not deem it necessary to decide them in this case.
• The judgment of the said court of common pleas, in favor of the appellees, for the amount specified in the verdict of