Richardson Bros. v. Stringfellow , 100 Ala. 416 ( 1893 )

McCLELLAN, J.

We are unable to see what bearing the “commercial rating” of McKinstry could possibly have on any issue in this case. Such ratings are no more than the estimates cf third persons as to a man’s solvency, and the amount of credit which, in the opinion of such persons, may be safely given him; and surely such estimates are not binding upon him, or any evidence for or against him as to his real pecuniary condition 'at the time to which they relate. They were sought to be adduced here to strengthen the idea, which found lodgment in a tendency of the evidence, that McKinstry had not embraced all his property in the assignment attacked as fraudulent, the proposition being, in other words, to establish the fact that A. B. had more property than he had conveyed to his creditors by evidence of the fact that C. D. thought so at a given time, and had made a memorandum of his belief. The proposed testimony was properly excluded. The effort being to show that McKinstry, the debtor, remained in possession of the stock of goods and continued in control of the business after the assignment to Stringfellow, the claimant here, plaintiffs asked their witness “if McKinstry, after the assignment, was not in control of the business.” To this the reply was, “It seems he was.” This was excluded on motion of claimant, and an exception reserved by plaintiffs. The witness might have stated that McKinstry was in control of the business, if that had been true to his knowledge. This would have been the statement of a collective fact, which our decisions authorize. Iron Company v. Roberts, 87 Ala. 436. But that was not the form of his statement. . He was unwilling to affirm as a fact that which appeared—and even this at the time of the trial—to him to have been a fact, but of which he was not certain. He could only say “it seems” that Mc-Kinstry was in control of the business; that is, such was his conclusion, not his knowledge, but deduction from other facts,—-his mere opinion. The answer is not'in form or substance, either with or without reference to the question, the statement of a collective fact, or any fact at all, indeed. Its exclusion involved no error.

If the court erred in refusing to allow the witness Edding to give his opinion that certain figures in pencil on books of McKinstry, which were used also by the assignee, were made by McKinstry, the error was without injury to plaintiffs, since the witness afterwards, having stated that he knew McKinstrv’s handwriting, was allowed to say that, in his opinion, these figures were made by him. But this action was not erroneous. No predicate had, at the time the evidence was offered, been laid for such testimony; it had not been shown that the witness knew the handwriting of McKinstry. The remark testified to by Billups as having-been made by McKinstry within a month or two before the assignment, to the effect that, if it were not for the name of the thing, he would make an assignment himself, and that he did not know but that he might be forced to make an assignment, was a part of a general conversation, apropos of certain failures that had taken place in a neighboring city, the subject being the depressed condition of business. It was offered to show that McKinstry had had his final action in mind for some time before the assignment was made. It was clearly competent for McKinstry to rebut any prejudicial inference sought to be drawn from this evidence by any reasonable explanation lie could give of the remark imputed to him. But it was not competent for him to state in explanation the uncommunicated intention or purpose which actuated him to make the statement. The court, therefore, should not have allowed him to say that, if he made the remark deposed to by Billups, his purpose was to illustrate the position he had taken in the conversation. His purpose was to be arrived at from what he then said, and all then existing circumstances throwing light 'on the conversation, and not by his statement on the trial as to what it was.

Bona fieles vel non of the deed of assignment being the issue, it was competent for McKinstry to detail the circumstances under which the instrument was executed, and, among others, the fact that the assignment was made after taking legal advice in the premises. The testimony of Mc-Kinstry that he ascertained on the night before that an assignment would be necessary was manifestly in rebuttal of the inferences sought to be drawn from the evidence of Billups, and for this reason, if not upon other grounds, its admission was proper. At the time of the assignment there were certain goods in a warehouse at Newport, consigned to McKinstry. On the packages were letters which were shown to be the initials of tenants on the plantation of McKinstry’s wife. After the assignment, Stringfellow gave negroes— presumably the tenants indicated by the marks on the packages—orders for these goods, and they were taken away by these negroes. McKinstry testified that “the goods in the Newport warehouse marked to tenants were the goods of L. E. McKinstry, [his wife,] and were for tenants on her place. I shipped all the cotton, my own and my wife’s, in the name of J. A. McKinstry & Co., but the goods at Newport were shipped in the name of tenants of L. E. McKinstry to J. A. McKinstry &' Co.,” Plaintiffs, at this juncture, asked the witness “For whom were these goods pm-chased?” The court sustained an objection to this question, and plaintiffs excepted. It is to be assumed for the purpose of testing the point thus raised that the answer would have developed the fact that the Newport goods were purchased for McKinstry & Co., and this, taken with Stringfellow’s proven intimate knowledge of McKinstry’s business in all its details, would have authorized the jury to have inferred that at the time of the assignment these goods belonged to McKinstry and should have been taken by Stringfellow under the assignment, instead of being delivered on his order to tenants of Mrs. McKinstry. So finding, this transaction would have tended to show that Stringfellow was acting in reality for McKinstry, in his interest, and at his bidding, and not for the creditors ; and, though the circumstance might involve very little probative force, it was at least a badge of fraud which should have gone to the jury.

The value of the property owned by Mrs. McKinstry was not an issue in this case, there being no evidence that she had received anything from her husband in fraud of his creditors, and the court properly declined to allow the question, “How much is Mrs. McKinstry worth?” to be answered. Equally irrelevant was the inquiry whether String-fellow had told "Wimberly that he (Stringfellow) and Manning “had rented a part of McKinstry’s home place, and three mules, and that he had paid the rent on the lands, on the mules, and one wagon.” If these facts could be pertinent under any circumstaces, the connecting circumstances are not shown, nor was it proposed to show them. For aught that appears, the land and personalty were exempted to McKinstry, and hence properly retained by him ; and the transaction may well have been wholly disconnected with the assignment.

The theory upon which the plaintiffs asked the court to charge the jury “that, under the assignment of McKinstry & Co., E. Martin Stringfellow was the agent of J. A. McKinstry & Co., and said assignment is void, and plaintiffs are entitled to recover,” is palpably unsound. It is true that by the deed of assignment a power of attorney was formally given Stringfellow, and he was appointed in terms the agent of McKinstry; but this power of attorney was to be exercised, and this agency was to be performed, solely for the beneficiaries under the instrument, McKinstry’s creditors, and the sole purpose of this formal delegation of power and authority was to better enable the assignee to collect the assets, and, with them, pay the debts of the grantor. It has been many times decided that creditors have no ground of complaint on account of any disposition or reservation the debtor may make of his homestead. It is exempted to him, and is not property to which they have any right to look. The first charge given for the claimant asserts only this, and involves no error.

The second instruction for claimant is not open to the objection urged in argument, or any other. It is not at all invasive of the jury’s province, but tells them only that the law admits of the explanation of possession of property,— a proposition no one will deny,—and that, if they believe from the evidence that McKinstry’s possession had been explained, and believed further from the evidence that that possession was by Stringfellow’s permission,—by which we understand a possession under and consistent with the assignment,—it would not be a fraudulent possession. There is absolutely no assumption of fact here, but the whole inquiry is submitted to the jury.

Eor the errors pointed out above the judgment of the Circuit court is reversed.

The cause is remanded.