52 Me. 509 | Me. | 1864
Lead Opinion
The opinion of a majority of the Court was drawn by
By the laws of this State, any one, who knowingly aids or assists a debtor in a fraudulent transfer or concealment of his property to secure it from creditors, is liable to any creditor in double the amount of the property transferred or concealed, not exceeding double the amount of such creditor’s demand. R. S., c. 113, § 47.
In regard to the indebtment of Lysander Cutler, and the fact that he owned the bank stock, no question is raised. Did he transfer the stock to the defendant?
It is not denied that the defendant received the certificates, with indorsements purporting to be transfers to him, and that he has since that time transferred them to other parties. But he contends that the transfers to him were insufficient to give him the title, as against the creditors of Lysander Cutler, and that they were therefore not injured thereby.
Such a transfer may be made by an indorsement and delivery of the certificate of stock; but it is not valid, except between the parties thereto, " until it is entered on the books” of the bank.
The plaintiffs introduced the stock ledger of the People’s Bank, as proved by the testimony of Percival. Whether it was the book of the bank, kept for that purpose, was a question of fact, properly proved in that way. No attestation by the cashier, or by any other officer, was necessary.
By that book, it appeared that Lysander Cutler purchased and paid for six shares of the original stock of the bank; and that he transferred them to the defendant, Dec. 1, 1856.
One of the shares was originally purchased by Lysander Cutler, a year after he purchased the others. He therefore held two certificates, — one for five shares, and the other fox-one share. In transfex-ring them to the defendant, he indorsed upon the certificate of five shares a transfer of " the
Although shares "may be transferred by the indorsement and delivery "of the certificates, it does not follow that they may not be transferred in other modes. Such indorsement and delivery is but the evidence of the transfer. The fact of the transfer appears, in this ease, as well by other evidence, as by this. If there is any ambiguity in the indorsement arising from the use of the singular number instead of the plural, as between the parties it would be construed against the vendor. But when no question has been raised between the parties, and the vendee has taken and sold them all, without controversy, it would be absurd to allow him to deny his own title in any litigation with other persons.
It is said, however, that the stock ledger does not show "the number and designation of the shares” transferred to the defendant; and that the transfer was therefore invalid as to the creditors of Lysander Cutler.
It may be difficult to determine what meaning, if any, to give to the word "designation,” in the statute of 1841. It was regarded as tautological, and omitted in the subsequent revision. A share in the capital stock of a corporation is merely some aliquot part of it, and not any particular part. Any designation, therefore, except by stating the owner or owners, would seem to be impossible. Even if the shares were consecutively numbered, of which there is no evidence, this would be the same. For, as a share is not any particular part, but merely an intangible, undivided proportion of the whole, the number would but designate the successive owners.
The stock ledger, in this case, shows that Lysander Cutler purchased six shares of the original stock, receiving his title, or evidence of it, directly from the corporation; and that he transferred those six shares to the defendant. If any designation of the particular shares was necessary, it appears, so far as was possible, upon the record.
The transfer being proved, it was for the plaintiff to show
In order to prove this, certain conversations of Lysander Cutler with Coburn, Sept. 29, 1856, were proved, against the objection of the defendant. It may be doubted if the statements of Cutler had any tendency to prove fraud on his part. The counsel for the defendant claims that they were irrelevant to the question in issue. If they were so, and might have been excluded, we cannot perceive that the defendant could have been injured by their admission. It often happens that some facts not relevant are proved during a trial; and, though this should be carefully guarded against, lest the jury be confused by it, a new trial will not be granted on account of it, if the facts proved are such as could not have injured either party by misleading the jury.
In regard to the transaction of Dec. 7, 1856, the evidence was not admissible to prove " false pretences” on the part of Lysander Cutler, as stated by the Court. But, if it was admissible on any ground, it is immaterial what reason was given for it. This was but a few days after the transfer of the bank stock. And proof of other transfers made by the debtor, about the same time, has always been admitted in this class of cases. The exceptions do not show the contents of Cutler’s letter; and there is nothing reported from which we can conclude that any evidence was admitted except of the acts of Cutler, and his written declarations accompanying his acts, in securing the transfer of the funds in the Skowhegan Bank to himself, and from him to the defendant. What other transfers of property from him to the defendant were proved at the trial, the case does not show. But that this kind of evidence is admissible on the question of the fraudulent intent of the debtor, there can be no doubt. Warren v. Williams, ante, p. 343.
When the verdict was returned into Court by the jury, it was not signed by the foreman. Whether it is really necessary, in any case, when the verdict is returned, an
The plaintiff was not entitled to interest. This was given by the jury, under the instructions of the Court. But it was stated in a distinct and separate sum in the verdict. If the plaintiffs will remit the amount of interest, the verdict will be allowed to stand, and judgment will be rendered upon it. If the amount of interest shall not be remitted, the verdict will be set aside, and a new trial will be granted.
Dissenting Opinion
dissenting. — I am not satisfied as to one point. I think I should concur on all the other points decided, except as to interest, which is not fully considered in the opinion. The point I allude to as unsatisfactory, is the admission of the testimony of Coburn, as to the declarations of Lysander Cutler on Sept. 29, 1856. They were clearly inadmissible, even to prove an intentional fraud on the part of the father in refi rence to the case on trial. They were made long before, — were in relation to a matter entirely distinct from the one in question, — were not connected with any act, or, if by a great stretch they may be so connected, that act was obtaining and receiving money on other notes, by means of these statements. The defendant had no connection with this money or these notes. As well might you introduce evidence, in case Lysander Cutler was on trial on an indictment for fraudulently obtaining this money from the bank on the 29th of September, that about the same time he stole money from another, or committed an assault and battery, or forged a note passed to another bank. To make evidence of other transactions at and about same time ad
The testimony as to the declarations on 29th of Sept., it is admitted in the opinion are clearly inadmissible, but it is determined that they are immaterial, and do not in themselves show any fraudulent intent. I am not satisfied with this view. I think that the Court should be slow to consider statements as immaterial, or as of no force, in favor of a party who insists upon putting them in, after objection, and after, as we know, the same question as to their admissibility had been before the Court, and their admissibility strongly and earnestly urged and objected to by the parties. It is easy now to say that they were immaterial strictly to the issue. But one can hardly " wink hard enough” not to see that they were deemed important by the plaintiffs’ counsel, and that they might be, and no doubt were pressed upon the attention of the jury, to fix on Lysander Cutler, if not on the defendant, a gigantic scheme of fraud. If of no use, why pressed in? I am for holding counsel responsible when they foist in, against right and law, and well settled principles, proof of facts which they have no legal right to put in; and this, after full warning and abundant caution. There may be cases, I admit,
The ground of the opinion is, that these declarations of Lysander Cutler were explicit assertions of honest intentions, and that no fraud could be extracted from them. It is true, that there is no direct evidence reported, as introduced by plaintiff, to show the falsity of these declarations. But there was evidence that these notes of the 29th of September were not paid at maturity; that the plaintiffs sued the signers, Earrar & Cutler, and obtained judgment, and that no part of the judgment had been satisfied. Even if we lay out of the case the fact, notorious through all the State, that Farrar & Cutler failed for a large amount, we have enough in the case to show that there can be no reasonable doubt that the fact of such failure was befoi-e the jury. If so, there can be no doubt that this illegal testimony, so pertinaciously insisted upon, was used to satisfy the jury that all these statements were false, and that Lysander Cutler, then in failing circumstances, used them for the fraudulent purpose of getting the money, and that this was evidence of a general fraudulent scheme, on his part at least, to cheat the public generally and this corporation in particular. I do not think that we have a right to assume that this testimony was put into the case, by the able counsel for the plaintiffs, merely to satisfy the jury that Lysander Cutler was an honest man, and told the honest truth in every case but the one on trial.
Nor can we assume that the jury could not possibly have been misled or prejudiced, or confused by its introduction. If in, — then it could be used and commented on, in connection with all the facts proved, and we must all have forgotten the lessons of our professional experience, if we cannot see how these facts and declarations could be used to satisfy
It does not appear that the presiding Judge made any allusion to this testimony in relation to the declarations on the 29th of Sept., as irrelevant or immaterial, but spoke of it as tending to prove that Lysander Cutler " obtained the money for the discounted notes by false pretences and statements.” This clearly shows that the whole matter had been argued before the jury, on the ground that these statements, on the 29th, were false and fraudulent, and not explicit assertions of honesty. No one, it seems to me, can doubt this, or that they were attacked and denounced as false and fraudulent. All this was wrong. The Judge allowed the jury to consider them, so far as they did influence their minds, in connection with other testimony, to show fraud as to the bank shares. The case of Lincoln v. Fitch, 42 Maine, 468, is in point. The Court states " that the evidence introduced for one purpose, was suited to mislead the jury in the consideration of other matters before them, wherein, it was stated by the Judge, to be inadmissible.” I am therefore in favor of sustaining the exceptions, on the ground of the admission of improper testimony.