H. B. Claflin Co. v. Rodenberg , 101 Ala. 213 ( 1893 )

HEAD, J.

The first and second assignments of error must be sustained, The sale of the goods by F. S. and H. Rosenberg to claimant was being assailed by the plaintiff on the ground of undervaluation. What claimant received for the goods, on private sales made by him afterwards to third parties, can not be legal evidence, against the plaintiff, of their value. Such sales afford no test of value. To allow such evidence would be to allow a party to malee evidence for himself.

The question asked Kennedy, “What was the amount of the H. B. Claflin Company’s debt, claimed when the levy was made?” seems entirely immaterial and useless, and, no doubt, will not be asked again on another trial.

The matters proposed to be proved by the witness, Bizzell, covered by the fourth and seventh assignments of error, were not competent evidence against the claimant. They are declarations of Fred. S. Rosenberg against the interest of claimant, when the latter was not present to deny or explain them.

It is the duty of a part}7 excepting to make clear to this court the error insisted on. The question to witness, Bizzell, “If he knew of Fred. S. Rosenberg trying to get claimant to receive goods for him, the said Fred. S. Rosenberg?” is too indefinite to enable us to determine ■whether it sought to elicit legal evidence or not.

The sixth assignment of error is too general and indefinite . There are a» number of questions covered by pages 62 and 63 of the record, to which the court sustained objections. We are asked by this assignment to consider those “showing the fraudulent intent of F. S. Rosenberg in disposing of goods.” The appellant should have pointed out to us the questions supposed to show such intent.

The first charge given at the instance of claimant is free from error. It but asserts the oft repeated doctrine of this court in reference to sales of goods in payment of existing debts.

There is evidence tending to show that there were goods in the boxes and trunk delivered to claimant which were not mentioned in the bill of sale which was executed by the Rosenbergs to claimant, at the time of the purchase, on the 20th day of January, 18yl. The title to those goods, however, is not involved in the issue tried in' this cause. The only goods claimed by the claimant, and for which he gave bond to try the right of property in, are those mentioned and described in the schedule to the bill of sale. But this feature of the transaction, nevertheless, raises an important inquiry touching the bona fidos and validity of the sale. The bill of sale, which is set out in the record, has its well defined legal effect, which could not be altered or varied by any other agreement, express or implied, made at the time and resting in parol. Its effect is that the Rosenbergs sold to claimant the goods mentioned therein, and no other, in full payment and discharge of the entire indebtedness owing him by them ; so that the moment the bill of sale was executed and delivered, that indebtedness was discharged by the transfer of the goods therein conveyed. It matters not that those goods may have been worth less than the indebtedness, for by the contract of the parties the transfer of them was accepted in full payment. The debt was cancelled as completely as if it had been paid in cash. That contract, the moment it was executed, resulting, as we have seen, in the cancellation of the indebtedness, became irrevocable and unalterable, as against the other creditors of the Rosenbergs. They could not then or thereafter lawfully deliver other goods to the claimant in payment of that indebtedness ; and if they did add to the goods mentioned in the bill of sale, other goods of material value, and deliver the same to the claimant, as and for payment of the said indebtedness ; and if the claimant knew of such unlawful delivery, or afterwards ratified it by disposing of the goods so unlawfully delivered, as his own, the transaction was a fraud upon the other creditors .which authorized them to set aside the sale, as to all the goods. Such a transaction is nothing less than a demonstration that the parties applied more of a debtor’s goods in alleged payment of his debt than by law they were entitled to do, as against the rights of other creditors. It was, in effect, an attempt to change the terms of the written contract, revive the debt and apply more goods to its payment ; and all occurred at one' and the same time and as parts of one transaction. This they could not lawfully do. If done, its effect was to hinder, delay and defraud the other creditors, and the title of the claimant can not be sustained. The second charge, therefore, given at the request of the claimant ought to have been refused.

For the errors mentioned, the judgment is reversed and the cause remanded.

Reversed and remanded.