117 Mass. 228 | Mass. | 1875
The question, presented by this bill of exceptions, is not whether the facts stated and evidence reported were sufficient to authorize the jury to find that Smith intended a preference ; but whether they could so find notwithstanding they should also find that he “ expected and supposed, when the goods were delivered, that the defendant would pay him for the goods ” at the next pay day.
We must assume that all the other propositions, stated hypothetically in the instruction given to the jury, were found by them to have been established; to wit, that Smith was insolvent when he delivered the goods, and had reason to believe that he was so; and also that he knew that the defendant would have the right to apply the account, for goods so delivered, upon his previous debt, if there should be occasion, or if the defendant’s officers should see fit so to do. But it is not to be assumed that the jury found that Smith actually knew or supposed himself to be insolvent, or that he was acting “ in contemplation of insolvency ; ” because no such proposition was embraced in the instruction, or in the statement of facts. Nor is any inference to be drawn from the evidence contrary to the hypothetical statement of the instruction that “ Smith expected and supposed ” that the goods would be paid for. The correctness of the instruction must be determined by the propositions it contains; because the jury were authorized to render their verdict upon ihose alone, and may be supposed to have done so. The force of the exception is not met by arguments upon the evidence in sup
The written contract or order, under which these goods were delivered, contained no reference to a previous debt of Smith for money borrowed of the defendant. If the goods were delivered upon the expectation and supposition that they would be paid for at the usual pay day of the defendant corporation, there is nothing in the case to warrant the inference that they were delivered in payment of the loan with the expectation of a further loan of the same amount. And if the facts or evidence would warrant an argument to that effect, it would be a perversion of the language of the instruction to ascribe that sense to the words used, that the defendant “would pay him for the goods.” We must therefore, in fairness to the judge as well as to the excepting party, construe the reference to the option, under the contract, to apply the amount due for the goods to a preexisting debt, as meaning only the option which the defendant would have as a creditor to take advantage of the legal right of set-off.
The intent to prefer is essential, and is to be found by the jury. Danny v. Dana, 2 Cush. 160, 172. Judd v. Gibbs, 3 Gray, 539, 544. Toof v. Martin, 13 Wall. 40. A preference was not the direct or necessary consequence of the acts of Smith. A man may, indeed, be presumed to intend the natural and probable consequences of his own acts. But that presumption is only one element of proof to establish the fact of actual intent. The evidence does not show that, prior to the attachment by which Smith’s business was interrupted, the probability that the defendant would insist upon a set-off, and thus secure a preference, was so obvious as conclusively to maintain the proposition that he contemplated it and sold and delivered the goods with a view to such a preference; especially against the fact assumed by the instructions that he “ expected and supposed ” otherwise.
We are of opinion that in authorizing the jury to find an intent to prefer, upon the facts of this case, contrary to the actual expectation and supposition of the debtor, the instruction of the court was erroneous. Exceptions sustained.