78 Ala. 176 | Ala. | 1884
This is the third appeal in this cause. — See Shealy & Finn v. Edwards, 73 Ala. 175; s. c., 75 Ala. 411.
The question on which this case hinged, in the last two trials in the Circuit Court, was fraud vel non in the alleged sale of a stock of goods by Terrell & Yincent to Shealy & Einn. Almost every phase of this question has been heretofore considered in this court. — Borland v. Mayo, 8 Ala. 101; Crawford v. Kirksey, 55 Ala. 282; Hubbard v. Allen, 59 Ala. 283; Harrell v. Mitchell, 61 Ala. 270; Thames v. Rembert, 63 Ala. 561; Lehman, Durr & Co. v. Kelly, 68 Ala. 192; Levy v. Williams, at the present term. It would seem to be a waste of time to repeat what we have so often declared, and we will
Shealy & Finn claimed the goods, for the attachment and seizure of which they brought this action of trespass, under an alleged purchase from Terrell & Yincent. The purchase was entirely on credit, the purchasers giving to Terrell & Yincent their notes for the purchase-money. Those notes are not presumed to have remained with Shealy & Finn, the makers, but the presumption, as well as the proof is, that they were delivered to Terrell & Yincent. They are still with them, or with their transferrees, so far as this record informs us. They were no more under the control of Shealy & Finn, than they were under the control of defendants. Neither could compel their production, except by subpcena duces tecum. Proof had been received of the execution of the notes, and their several amounts; and from the charge given, we must suppose this proof was made without the production of the notes. In the seventh charge asked by appellees and given, the Circuit Court instructed the jury that the failure of plaintiffs to produce these notes in evidence was “ ground for an unfavorable presumption as to whether the contract is valid or invalid as to creditors.” In this the Circuit Court erred.
The 19th charge asked and given, can not be vindicated. The hypothesis of that charge is, that the sale was made with fraudulent intent on the part of Terrell & Yincent, but Shealy & Finn had no notice of such intent, either actual or constructive, until after the contract of purchase was complete, and did not participate in the fraud. If the jury find these to be the facts, then Shealy & Finn acquired a good title by their purchase, and ILardie is without power to subject the merchandise to the payment of his demand. ILis recourse, if any, would be to intercept and condemn the unpaid purchase-money. On this hypothesis, there was no duty resting on Shealy & Finn to offer to rescind their contract of purchase.
The Circuit Court did not err in disallowing plaintiff’s question to witness Baker, as to the source from which he obtained the sum of money he had testified he had. Whether he had such sum, or whence he obtained it, were inquiries wholly foreign and immaterial to the issue before the jury.
Reversed and remanded.
