55 Ky. 492 | Ky. Ct. App. | 1855
delivered the opinion of the Court.
On the 19th of October, 1853, Jonathan Myers executed to O. C. Williamson a bill of sale, transferring to him, for the consideration- of $15,000, acknowledged to be received for the steamer Yorktown, No. 2, and the barge Yorktown, No. 2. The bill of sale was regularly recorded in the Custom House at Cincinnati. But the consideration, instead of having been paid, was secured or evidenced by the note of Williamson of even date with the deed, and by which he promised, two years after date, to pay to the order of J. Myers the sum of $15,000, with the following additional words in the note: “But it is ‘ understood that the amounts due by. the steamer ‘ Yorktown, No. 2 and barge is to be deducted from ‘the amount above named — $15,000; this, note be- ‘ ing for the purchase of said boat and barge, and ■* when said boat’s debts are paid then the balance of
On the 3d day of June, 1854, the boat having returned from her last trip to New Orleans fort-hat season, and being in the county of Kenton, opposite to Cincinnati, she was attached by Smead, Collard & Hughes, who set up, in their petition for that purpose, four judgments against Myers, &c., rendered in Hamilton county, Ohio, and bearing ten per cent-um interest, and alledging that the transfer by Myers to Williamson was but colorable, and was made with the intent to defraud the creditors of the former, and especially themselves. Myers answered, admitting that the sale was not a real one, and alledging, in substance, that being embarrassed with debts, and unable to raise funds necessary for finishing the repairs of the boat, and for putting her in condition for entering upon the business of the season of 1853-4, from which he anticipated great profits, and being desirous to realize those profits for the purpose of paying his debts, and fearful that the boat, then in Licking river in Kentucky, would be attached if taken over to Cincinnati, he made the transfer to O. C. Williamson, then a clerk in the store of Isham & ■ Fisher, (the principal creditors of the boat,) and who had formerly been a clerk on his boat, under an arrangement that his brother, Samuel Williamson, should be captain or master, and O. C-. Williamson
Soon after the commencement of the suit, to-wit, in August, 1854, the boat was publicly sold under an order of court, and brought $ 14,500, on a credit of six months. And on that hearing, the four depositions above mentioned having been rejected, on the ground of incompetency of the witnesses, and the court being of the opinion that although, without their testimony, the intention of Myers in making the transfer was sufficiently established, there was no satisfactory evidence of Williamson’s participation in it, the petition was dismissed with costs; and from that judgment the plaintiffs have appealed.
The first question arising in the case, as presented in this court, is whether the circuit court erred in rejecting the depositions above referred to, or either of them. The interest of Walker and Haldeman in subjecting the boat or its proceeds to the satisfaction of debts, for which they are themselves bound, for a principal probably insolvent, is obvious; and their competency is scarcely insisted on. But a serious question is made upon the rejection of the deposition of Myers, who, it is contended, has an interest on both sides, equally balanced, inasmuch as if the boat is subjected he looses his claim upon the note, which he will have if the boat is determined to' be the property of Williamson, under his purchase; and
If the subjection of the boat, in this case, would authorize a recovery against Myers for the breach of his warranty, or his covenant against incumbrances,, this liability, consequent upon a termination of the suit in favor of the party calling him, might be deemed equivalent to the advantage gained by that event. And, as such a liability would be avoided by a differ
It is said, in argument, that according to the principle settled in the case of the Planters' Bank of Tennessee vs. Baker, decided at the last term, Williamson, in the event of the loss of the boat, in this suit might, to the extent of his payments, be substituted to the rights of the creditors of Myers, and to their liens on the boat; and that Myers would therefore gain nothing by the subjection of the boat. But the principle of the case referred to is not understood to admit of the application contended for. If the plaintiffs here were attempting to make Williamson liable for the profits of the boat made while he controlled her
The boat must have been worth considerably more on the 19th of October, 1853, when nearly fitted for commencing the business of the season, than she was in August, 1854, when after being in service for six or seven months, she brought on a credit of six months, nearly as much, well secured, as Williamson was to give out of her profits in the course of two years. The lowest estimate of her vendible value, made before the sale in Octobor, is $15,-.000, by a witness who says Myers about that time offered to sell her to him for $20,000; an offer considerably below his usual estimate of her value, and which if made, is to be attributed to the urgency of Isham in pressing for payment or security for the demand of his firm, then amounting to near $5,000, against the boat.
It is proved thatMyers had high expectations with respect to the profits of the approaching season; that he had apprehended attachments upon the boat, by which he might be prevented from reaping those profits; that he was unwilling to sell the boat, but wanted to place her in the hands of a friend who would keep her for him, so that he might be thereby enabled to pay his debts. Isham who advised a sale, and insisted on the boat being placed in other hands for management, as the only means that would secure or satisfy his firm, knew that Myers was unwilling to sell, but that he desired to make a sham sale. His clerk, without means, is the person to whom the transfer is made, upon the terms which have been stated, and after his hesitation, as Isham says, had been removed bylsham’s promise of forbearance and assistance. But Isham took good care to have not only the boat, but also the freight of the first trip in
The evidence discloses many particulars, bearing for or against the conclusion which we have stated, but preponderating decidedly, as we think, in favor of it. We need not encumber this opinion with a detail of them, but merely add, that if this sale is to be sustained, it would evidently have been much better for Myers to have permitted his boat to be attached and sold when she was newly repaired, and would, as the subsequent sale and other facts prove, have brought a much better price, payable in a short time and well secured; and it is not to be forgotten in considering the intent of the transfer, that while the absolute bill of sale acknowledging payment of a price which though low, might not, if actually paid, have been evidence of fraud-, no part of the price
Wherefore, the judgment dismissing the petition is reversed, and the cause remanded for a judgment giving to the plaintiffs the proceeds of the sale of the boat.