53 W. Va. 415 | W. Va. | 1903
"Oilman, Einstein & Co. brought detinue in the circuit court of Wood County against Biddle Bros, to recover ten barrels of whiskey, which resulted in a verdict of a jury finding for the plaintiffs eight of the ten barrels, on which verdict the court gave judgment for the plaintiff, and the defendant brought a writ of error. The side of the case of the plaintiffs is that their agent, Guggenheim, sold to Wilson, a liquor merchant, the whiskey, and shipped it from Cleveland to Wilson at Park-ersburg; that when advised of the shipment Wilson declined to accept the whiskey, and wrote the plaintiffs a letter so declining; that on the receipt of the letter said agent went to see Wilson and tried to get him to buy the whiskey, but Wilson declined, and then an arrangement was made between them that Wilson should take the whiskey into his store and keep for the plaintiff on storage, until they could sell it, and the
Wilson was at all these dates heavily in debt, beyond solvency — far beyond.
On the trial the court, on motion of the plaintiffs, gave, the following instructions: “If the jury believes from the evidence that the plaintiffs were the owners of ten barrels of whiskey described in the declaration and that the plaintiffs sent said whiskey to Parkersburg in or about the spring of 1898 to be delivered to J. L. Wilson, or to some other person in his behalf, and if the jury further believes from the evidence that J. L. Wilson, after being notified that the whiskey had been shipped, refused to buy or accept said whiskey as a purchase, but that the said Wilson did afterwards take the same into his possession as the property of the plaintiffs with the understanding that he would hold the same for the plaintiffs and subject to their order — then so long as Wilson held such whiskey under that arrangement, the whiskey remained the property of the plaintiffs, and Wilson had no title thereto and could not pass title to the whiskey or make lawful sale of the property. And if the jury believes from the evidence that Wilson did take such whiskey into his possession agreeing to hold it for the plaintiffs as their property as,above set forth, then before the jury can find that the whiskey' subsequently became the porperty of Wilson, the burden of proof is on the defendant to show by fair preponderance of the testimony that Wilson lawfully acquired title to the property after agreeing to hold it for the plaintiffs.”
We see no error in that instruction. Plainly, if there was no
The defence complains that the following instruction was refused: “The jury are instructed that this is not a suit attacking the sale of the goods sued for by J. L. Wilson to J. W. Depue and by Depue to the defendant Biddle Brothers, and this is not a question before you. The sole question is whether the legal title to the said goods passed from the .plaintiffs to the said J. L. Wilson and by Wilson to Depue and from Depue to Biddle Bros., and if you find that the said goods were purchased, by Wilson from the plaintiff either when originally invoiced to- him or subsequently in May, 1898, when Wilson received and took possession thereof from the railroad company, then you should find for the defendants.”
There is no proper matter in this instruction not contained in the instructions given; but it tells the jury that the question' whether there were real bona fide sales from Wilson to Depue and from Depue to Biddle Bros, was foreign to the case; that is, that though they might believe from the evidence that one' or both sales'were sham, false and fraudulent, done with design to cheat the plaintiffs out of $750.00 purchase, money for the whiskey, yet it had nothing to do with the case. Blainly this is not so. If there was such fraud, could not the jury infer that as the evidence of witnesses to sustain the validity of the sale was false, so was Wilson’s evidence that he had purchased the goods? Again, say that Wilson in May agreed to accept the goods. He was steeped in debt over $12,000.00, was insolvent utterly, and concealed this from the plaintiffs, ' buying the goods when utterly unable to pay for them on" credit. He was .so deeply indebted that he could not answer it's amount. This was a fraud on the vendor. He bought as if able to. pay, and on credit. “Where a party, by fraudulently concealing his insolvency and his intent not to pay for goods, induces the owner to sell them on credit, the vendor, if no innocent party has acquired an interest in them, is entitled to dis-affirm the contract and recover the goods.” Donaldson v.
Lastly; as to the verdict. We cannot set it aside. I think it justified by the evidence; but it is enough to sajr for the Court that the case before the jury was on questions of fact on a large mass of oral evidence flatly conflicting, given by various witnesses. As to* the material point whether Wilson did finally purchase or take the liquor in storage, as on other matters, the case turned on credibility of witnesses and we cannot interfere with the verdict. In such a case the verdict of a jury is sacred and beyond our power as held in Young v. W. Va & Pittsburg Railroad, 44 W. Va. 218. We therefore affirm the judgment.
Affirmed.