40 Mich. 274 | Mich. | 1879
Plaintiff in error is assignee of the copartnership of Wilson Bros., composed of George B: Wilson and Frank B. Wilson, recently doing business in Detroit. The assignment is a general assignment fór the benefit of creditors, and bears date January 18, 1878. Seymour, the defendant in error, is named in the assignment as one of the creditors of Wilson Bros., and this suit is replevin to recover the possession of certain goods purchased by them of him shortly previous to the assignment, and which he claims were -bought with knowledge'on their part of their insolvency, and with the intention not to make payment.
It was shown on the trial that Wilson Bros, com
One Watson was the agent of defendant in error in making sale of the goods in controversy. He testified to being in Detroit December 13, 1877, with samples of' tobacco which he exhibited to George B. Wilson. He-also asked George B. Wilson whether the assets of the-firm exceeded their liabilities, and was told .in reply that they did. The next morning the firm ordered of him ten bales of tobacco of a particular sample, five bales
I. On the trial Watson was a witness for Seymour, and was allowed under objection to state that he learned of the assignment on the evening of January 18, 1878; that he saw George B. Wilson the next morning and asked him how he reconciled his failure with the statement of their affairs made by him some thirty days before; that Wilson did not respond to the inquiry, but made some remark about having lost a good deal of money in a series of years in failures. It is complained that by this evidence the admissions of the assignors made after they had parted with all control, were brought into the case to affect their assignee.
It is a little difficult to understand the object of plaintiff in insisting upon putting this evidence into the case, or how the defendant could suppose he was prejudiced by it. What Wilson said was no admission of fraud, and tended rather to present a valid excuse than to show dishonesty in his failure. Perhaps it would have been wiser for the judge to exclude this conversation, but we cannot consent that parties shall be put to the expense of another trial merely because the judge permitted the introduction of immaterial evidence where it is plain it could not have affected the issue. Comstock v. Smith, 20 Mich., 345; Continental Insurance Co. v.
II. On the cross-examination of Watson it was shown that Seymour had sold Wilson Bros, goods in October, 1876, and taken notes therefor which had been extended from time to time; that Watson called upon them in May, duly and September, 1877, and offered to sell them goods, but they did not then buy of him. Defendant then put to the witness questions as to what was said by Wilson Bros, to him on these occasions; but the questions were overruled. It is claimed that this ruling was erroneous; that the answers might have tended to show that Watson did not rely upon what was said to him by George B. Wilson in December in making the sale to the firm at that time, but upon his general confidence in the firm arising from former dealings, offers to deal which were declined, etc. It is easy to suggest the possibility of something having been done or said at these former meetings that might have had some bearing on the present controversy, but the defendant at the trial made no distinct offer of evidence that would be important, and prima facie the statements made by Wilson were mere hearsay, and for that reason wholly inadmissible. If Watson then offered to sell to the firm on credit, the offer showed his confidence; if the Wilsons then declined to purchase, the fact was some evidence that at that time they had no purpose to defraud; but their statements then made to Watson are prima facie not admissible, because they could not have tended to
III. Watson was permitted to testify under objection, that Seymour’s instructions to him, under which he made the sale in December, 1877, were to make special inquiries of Wilson Bros, and of others in Detroit before he sold them any goods, and if he was satisfied with the statements made and with the answers to his inquiries, then to sell them a bill of goods. It is said that this evidence was immaterial, because it appeared that Watson did not communicate to Seymour the result of his inquiries when transmitting the order for the ten bales of tobacco, or at any other time, and 'consequently Seymour could not have been influenced by them. But we think Seymour had a right to assume that Watson obeyed his instructions, and that the answers had proved satisfactory before he consented to transmit the order. The fact that Seymour sent goods in compliance with the order would not be evidence that Wilson Bros, made any representations whatever to Watson; but the representations are proved independently, and his sending the goods only shows that he assumed the existence of facts which the independent evidence establishes.
IY. December 28, 1877, Seymour addressed a letter to Wilson Bros, in which he stated to them that he had been informed that they had given to Mr. Bothschild, or the concern of which he was a member, a judgment for several thousand dollars, which had not been recorded, and inquiring in confidence if this was true. Two days later Wilson Bros, replied, expressing indignation at the report, protesting that it is hard to have to fight for their credit against unknown enemies, and declaring that they “ can truly say that neither Sigmund [Bothschild] or his firm, or any one belonging to his firm ever had any judgment or mortgage against” them. The reception of these letters in evidence was objected to. The purpose in proving them was to show fraud. It is truly said that the letter of Wilson Bros, was strictly accurate
V. Plaintiff was permitted to prove by one Giddings that in October, 1877, he sold a bill of goods to Wilson Bros, in reliance upon representations made by George B. Wilson that the firm could pay two dollars for every dollar they owed, and that the bill still remained unpaid. As no such representations could truthfully have been made at that time, the natural inference would be that the purchase from Giddings was fraudulent, and this might strengthen the inferences of fraud deducible from the transactions with Watson in December. It is said that the transaction with Giddings was too remote to have any legitimate bearing. It was remote in point of time some two months, but if the sale was made on the same credit which was given by Seymour, the bill would not have fallen due when the assignment was made. As the time -of credit is not mentioned by Giddings, it is perhaps reasonable to assume that the sale was on what Watson at one place in his evidence speaks of as the “usual terms,” namely, at four months. The posi
That evidence of transactions about the same time as the one in controversy is admissible, is not disputed; Rowley v. Bigelow, 12 Pick., 307; Hall v. Naylor, 18 N. Y., 588; and this does not mean that they shall have occurred on the same day or within the same week. The nature of the transaction must have much to do with the' question of time, and it cannot be said as matter of law that one month or two months is too remote. In a case like the present it is obvious that the time of credit would be a most important circumstance in its bearing upon the question of a common purpose in the purchases; and we think the court did not err in deciding to receive the evidence. It is true that if the bill was not yet due, no inference of fraud, could be drawn from the mere fact of its remaining unpaid; but there was no error in suffering the witness to state that the purchase price of goods purchased by means of a falsehood was still owing.
YI. The plaintiff in the court below made much use of the fact that the chattel mortgage to Graves was kept off the files until two days before the assignment was made. BLe did not dispute that Graves had let Wilson Bros, have moneys to the amount specified in the mortgage, but his theory of the case was that the moneys were a gift to the grandsons, and that the mortgage was
The question of the bona fides of the mortgage to Graves was fairly in issue on the trial, notwithstanding its consideration was not disputed, and the court was right in permitting the time of filing to be proved, as well as the use afterwards made of it. No error was committed on this part of the case of which the defendant had any just cause of complaint. If the jury had inferred from all the evidence that the Graves mortgage was taken and kept on foot for the benefit of the mort
"VII. The main question discussed in the case was whether a purchase made when the purchaser knows he is insolvent, and with the preconceived purpose not to pay, is void, even though there may not have been, at the time of the purchase, any fraudulent representations. We are referred by plaintiff in error to Pennsylvania decisions which negative the proposition. Smith v. Smith, 21 Penn. St., 367; Backentoss v. Speicher, 31 Penn. St., 324. But there is an overwhelming weight of authority the other way. Donaldson v. Farwell, 93 U. S., 631; Powell v. Bradlee, 9 Gill & J., 220; Thompson v. Rose, 16 Conn., 71; Ayres v. French, 41 Conn., 142; Nichols v. Michael, 23 N. Y., 264; Hennequin v. Naylor, 24 N. Y., 139; Devoe v. Brandt, 53 N. Y., 462; Wright v. Brown, 67 N. Y., 1; Dow v. Sanborn, 3 Allen, 181; Holbrook v. Connor, 60 Me., 578; Bishop v. Small, 63 Me., 12; Stewart v. Emerson, 52 N. H., 301; Ferguson v. Carrington, 9 B. & C., 59; Ex parte Whittaker, L. R., 10 Ch. App., 446.
We think no injustice was done to plaintiff in error on the trial, and the judgment must be affirmed, with costs.