19 Mont. 564 | Mont. | 1897
The pivotal question to be determined on this appeal is as to whether the execution sale of the goods in controversy, under and by virtue of which the appellant claims ownership thereof, was illegal, fraudulent, and void for the reasons alleged in the answer.
The execution under which this sale took place was issued on the judgment rendered in the case of Pincus against Lachman & Dunstan, as ’set out in the statement of the case, and v hich judgment is attacked for fraud by the answer of re-, spondent. The complaint in the case of Pincus against Lachman & Dunstan, mentioned above, and in which the alleged fraudulent judgment was rendered, alleges as causes for action four promissory notes executed by Lachman & Dunstan — the first for $1,000, dated December 7, 1891, payable to Pincus; the second, payable to Pincus, in the sum of $500, dated January 1, 1892; the third for $1,600, dated October 1, 1891 ; and 'the.fourth for .'SI,25.0,.dated February 1,1892 ; the last two notes being payable to one S. D. Martin, who transferred them to Pincus before suit.
The evidence of Martin and Dunstan is positive that there was no consideration for the two Martin notes above mentioned. Concerning the execution of these notes Martin testified as follows: .
1 ‘I agreed to take these notes to help them (Lachman & Dunstan) out; that is, to ostensibly have them in my debt
* * * Pincus made the suggestion to me. * * * Pincus told me he was willing to ‘help the boys out, ’ as he called it. * * ' * They were not to beat anybody. They just wanted an extension of time, and.it was to give them an extension of time that this arrangement was made. They mentioned several creditors, Mr. Brophy in particular. Pincus said he would take these notes, and bring suit, and get judgment, and forestall their other creditors. Prior to the Pincus ‘attachment, Lachman & Dunstan did not owe me a cent. Pincus and Lachman and I had a talk one time about the matter, walking across Main street towards the restaurant ; and we had another conversation about it up in the Mint. I saw Lachman at the premises that evening after the sale. He was getting ready, and making calculations of opening up as soon as possible. The arrangement was that Pincus was to let them have the place, and go on and run it as we had agreed to do in the first place.”
Dunstan’s testimony as to these two notes is as follows:
“That Lachman and he were partners in the restaurant business in 1892 ; that he knew Mr. Pincus ; that at the date of the Martin notes Lachman & Dunstan did not owe Martin a dollar ; that Lachman had told him that he would have to sign the Martin and Pincus notes ; that the notes were just to confess judgment in favor of Pincus and Martin, so as to give us time, and keep other people from attaching us. On the 9th of February, 1892, we did not owe Sam Martin a dollar. ’ ’
This testimony is not disproved. While it is not literally admitted by Pincus & Lachman, it is not successfully contradicted, and, we think, is substantially admitted
From this evidence we do not see how the jury could have done otherwise than find that the judgment in favor of Pincus against Lachman & Dunstan, under which the sale took place at which Pincus bought the property in controversy, was fraudulent and void. It is generally difficult to prove fraud. The.party alleging it must generally rely largely upon circumstantial evidence. But in this case we have the positive evidence of two of the conspirators and the substantial admission of the other two. The records of the courts rarely disclose such ample and positive proof of actual fraud as is found in this case. Here we are not compelled to grope through many labyrinths, and ways that are doubtful and dark, to find the slimy trail of the serpent. Here we have a bolder snake, who holds his head up, and disdains to hide or deny.
Counsel for appellant contends that the court erred by permitting Pincus, when on the stand as a witness, .to be cross-examined as to the entire transactions between himself and Lachman & Dunstan and Martin, in relation to the giving of the notes sued on and the recovery of the judgment alleged to be fraudulent in defendant’s answer. He says the court erroneously permitted the defendant to prove his case by Pincus by an improper cross-examination. But counsel overlooks the fact that Pincus claims in this case to be the owner of the property in controversy. His title is based upon his purchase of the property at an execution sale, which is alleged
During the trial Dunstan was permitted, over appellant’s objection, to testify that Lachman, long after the execution sale in controversy, asked him (Dunstan) to go to a lawyer’s office to sign a mortgage to Pincus for the same goods purchased by Pincus at the execution sale, and now in controversy. It seems that Lachman had some fear that the execution sale would not stand, and the mortgage was needed to cover possible emergencies. The objection to this evidence is that Pincus was not present.. But this was not part of the scheme of fraud. That scheme had not, in the opinion of the conspirators, been successfully carried out and completed. In such cases the declarations of any of the conspirators may be given in evidence, whether made in the presence of all or not. We see no error in this action of the court.
Counsel for appellant says Brophy & Co. cannot attack the sale of the property in question for fraud, because they knew of the sale and gave credit to Lachman & Dunstan after such sale.
Brophy & Co. had judgment against Lachman & Dunstan before this sale. They attached for an indebtedness accruing after the sale. But there is no proof that Brophy & Co. knew that the judgment obtained by Pincus against Lachman & Dunstan was fraudulent. As soon as they learned this, they had a right to attack it, whether their demands accrued before or after the execution sale.
The sale to Pincus of the goods in controversy having been under an execution issued upon a judgment absolutely void on
The judgment and order appealed from are affirmed.
Affirmed.