94 Ala. 407 | Ala. | 1891
— The action was in trespass to recover damages for the alleged wrongful levy of an attachment upon a stock of goods claimed to be the property of plaintiff. The trial resulted in a verdict for the defendants. The attachment was sued out by creditors of Sims & Beeves, upon debts existing at the time of the sale of the goods and merchandise to plaintiff. The evidence showed that plaintiff was a brother of the Beeves of the firm of Sims & Beeves, the vendors. The court of its own motion charged the jury, among other things, “that the law requires clearer and more convincing proof of its bona fides, when the transaction is between relatives, than when it is between persons who are not related to each other.” An exception was reserved by the plaintiff to the giving of this charge.
In the following authorities, and there are others not cited, it has been stated that “fuller and more convincing proof is required in cases where the transaction is between relatives, than»would be required if the parties were strangers:” Calhoun v. Hannon, 87 Ala. 285; Pollak v. Searcy, 84 Ala. 263; Jordan v. McIlwain, 82 Ala. 247; Moog v. Farley, 79 Ala. 252; Lipscomb v. McClellan, 73 Ala. 159; Marx Bros. v. Lienkauff & Strauss, 93 Ala. 453. Under the influence of this principle, the majority of the court hold that the charge was properly given.
A minority of the court are of opinion, that when the principle is thus formulated into a charge to the jury, it gives to the “fact” of relationship a legal weight not consistent with the pui'poses intended by permuting proof of the fact of relationship ; and such a charge is also a clear invasion of the right of the jury to determine what weight shall be given to any proven fact, and their exclusive right to draw all legal inferences from proven facts. The earlier cases held that relation
The juries are the exclusive judges of the weight of the evidence. The court pronounces the conclusions of law upon proven facts. When the' court therefore instructs the jury, that if the fact of relationship be proven, the law requires clearer and more conclusive proof than if this fact had not been proven, this is a conclusion of law fixed and determined as to the weight to be given to this fact, and it no longer remains a fact to be weighed by the jury like other facts, and accorded such weight as they see proper to give it. It no longer is dependent for its value upon its connection with other facts, but in and of itself raises a presumption in* law, which can not be overcome except by clearer and more convincing proof, than if the fact had not been proven. What more would be required, if such fact was held to be a badge of fraud? As was said in Stix & Co. v. Keith, 85 Ala. 471, the law declares rules for aiding juries in weighing, but never weighs parol testimony; citing 1 Greenl. Ev., § 10. note aa, and 1 Whart. Ev., 2d Ed., § 417. The correctness of the rule of law, as- declared in 85 Ala., supra, is conceded by the court. Now, if the jury are the exclusive judges of the weight to be given to the evidence, a charge which substantially instructs them that, although the evidence may reasonably satisfy them of the bona fid.es of the transaction, yet, if relationship is proven as a fact, then, as a matter of law, they must not permit the evidence to produce this degree of conviction in their
Cases might arise in which the rule should have no weight; as where the relationship is very distant, or where the proof shows that, although related, the parties did not know it, or that there had been no previous social or business intercourse with each other, or they were in fact at variance with each other at the time or' the transaction. Is the jury to be instructed as a rule of law, under such circumstances, that relationship having been proven, the law requires that clearer and more convincing proof of the bona fit les of the transaction be made than if relationship had not been proven? Is not the better and true rule that declared in those authorities which hold that the fact of “relationship is a circumstance to be considered by the jury in weighing the whole evidence of the case, and which is dependent for its value upon the degree of relationship and its connection with other circumstances which throw light upon and give color to the transaction.” Since the courts have repudiated the doctrine that relationship is a badge of fraud, and hold that .no presumptions of unfairness arise from this fact, this is the legitimate and full purpose intended by permitting the fact of relationship to be proven as evidence.
The second charge given at the request of the defendant asserts an incorrect proposition of law, but in giving it the court was not in error for the reason hereafter given. If the jury was otherwise satisfied that plaintiff paid for the goods with ' his own money, he was not required to further satisfy the jury of the source from which he obtained the means. It is not a canon or rule of law, that when creditors attach the bona fides of a sale of goods by the debtor, that the purchaser, in addition to the fact of payment, must also reasonably, satisfy the jury as to his means or source of means to make the purchase. The rule is, that if the payment, or its bona fides, is questioned — a matter controverted — the inability of the purchaser to show that he had the means, or any source from whence he could obtain the means, tends to discredit the evidence offered to show the payment of an actual and adequate consideration, and the bona fides of the transaction. If, however, the jury are satisfied that payment in good faith was actually made, it is not incumbent on the purchaser to go further and also satisfy them as to his means and resources. The statement in the case of Harrell v. Smith, 61 Ala. 276, embodied in this charge, was used by the court in argument upon the facts, and the inability of the purchaser in that case to show that he had means with which to make the purchase was stated as a reason why the court should not credit other testimony in the case, tending to show the payment of an adequate consideration.
In criticising charge 2 we have not overlooked the fact that the charge is based upon a plea upon which issue was joined. Issue having been joined upon the plea, although demurrable, the defendant had the right to introduce evidence in support of his plea, and to ask for an instruction upon the evidence adduced in support of it. There was no error in giving the charge.
It is the opinion of the court that the judgment of the lower court should be affirmed.'
Affirmed.