166 P. 1004 | Cal. | 1917
The plaintiff, Rossen, and the defendant, Villanueva, had been partners in the bottling business at San Bernardino. On April 4, 1913, the plaintiff sold his one-half interest in the property and business of the partnership to the defendants, Seward and Owens, who thereafter, together with Villanueva, conducted the business under the name of Ranier Bottling Company. During the existence of the partnership between plaintiff and Villanueva the plaintiff had contributed a larger amount to the capital of the business than had Villanueva, and plaintiff had a claim against said Villanueva for one-half of the excess thus contributed by him. On or about March 1st, Villanueva sold his interest in the partnership to Seward and Owens. On March 21, 1914, the plaintiff recovered a judgment against Villanueva for $592.46 on account of the claim above referred to. Execution on said judgment was issued and returned unsatisfied.
The complaint alleged that Villanueva's sale and transfer of his interest in the partnership to Seward and Owens had been made with the intent and purpose of defrauding plaintiff of the money so due him, and of preventing him from collecting the same, and that said Seward and Owens participated in said fraudulent intent, and took the transfer with the intent and purpose of assisting and aiding said Villanueva in evading payment of said indebtedness, and preventing plaintiff from collecting the same. It was further alleged that after said sale Villanueva had no property out of which his indebtedness to the plaintiff could be satisfied in whole *634 or in part. The prayer was for judgment that the transfer to Seward and Owens be canceled and declared void, and that analias execution be issued in the former action of Rossen v. Villanueva, empowering the sheriff to sell the said partnership interest of Villanueva.
The court found the foregoing facts in favor of the plaintiff, and rendered judgment for him as prayed The defendants, Seward and Owens, appeal from the judgment.
The complaint contains, in addition to the averments which we have summarized, a number of additional allegations, which were found by the court to be true. There is no occasion to recite their purport, or to discuss the sufficiency of the evidence to support the findings in their favor. The facts which we have stated are sufficient in themselves to entitle the plaintiff to relief.
Under section
It is familiar law that a pleading which merely alleges in general terms that an act was fraudulently done will not be held good. Fraud, for purposes of pleading, is a legal conclusion. But the intent "to delay or defraud" a creditor is a question of fact (Civ. Code, sec. 3442), and may be pleaded *635
in so many words, without stating the evidence or the specific facts which go to substantiate the charge. (20 Cyc. 736;Threlkel v. Scott, 4 Cal. Unrep. 346, [34 P. 851]; Anderson
v. Bank of Lassen County,
Where the transferee participates in the fraudulent intent, the transfer is void as to creditors, even though a valuable consideration may have been paid. (Goodwin v. Hammond,
The only question is whether the evidence supports the findings of a fraudulent intent on the part of Villanueva and of the appellants here.
There was evidence tending to show that when the plaintiff, Rossen, sold his interest to the defendants, he advised them that he still retained a claim against Villanueva. The amount of this claim was in dispute, and the plaintiff and Villanueva finally agreed to submit it to the decision of a referee. On February 26, 1914, the referee made his findings and decision, fixing the indebtedness of Villanueva to Rossen at $547.16. From that date until the 5th of March following, Rossen made daily efforts to find Villanueva, but did not succeed in locating him. During this time both Seward and Owens knew that plaintiff was trying to collect his claim from Villanueva. The evidence warrants the inference that Villanueva was concealing himself from Rossen. In response to plaintiff's repeated inquiries, Seward told him during this time that he did not know where Villanueva was. Seward had authorized the plaintiff to purchase Villanueva's interest on behalf of Seward and Owens for one thousand seven hundred dollars. On the 2d of March Seward and Owens bought Villanueva's interest from him for nine hundred dollars, they agreeing to assume the indebtedness of the firm. The transaction was conducted at Colton, instead of San Bernardino, where the business was located. On the 4th of March, two days after the appellants had made this purchase, Rossen told Seward that he had heard that a sale had been made in Colton of Villanueva's interest, and Seward said, in response to this, that he knew nothing about it. Seward, in testifying, admitted *636 this, his explanation being that he did not "have to tell all his business." Owens, who closed the transaction with Villanueva, carried to Colton the amount of the purchase price in currency, and paid it in that form, although he and Seward had a bank account and were in the habit of paying their larger bills by check. When Rossen asked Owens how much he had paid Villanueva, Owens answered that it was none of his business. Villanueva has not been seen by any of the parties concerned since this money was paid to him.
No extended argument is needed to demonstrate that the findings assailed are fully supported. The facts speak for themselves. The debtor's concealment, his subsequent disappearance, the unusual mode in which the appellants made their purchase (20 Cyc. 451.), the secrecy surrounding the transaction (20 Cyc. 447; Daugherty v. Daugherty,
The judgment is affirmed.
Shaw, J., and Victor E. Shaw, J., pro tem., concurred. *637