Hudson v. Bauer Grocery Co. , 105 Ala. 200 ( 1894 )

McCLELLAN, J.

One material inquiry on the trial below was whether J. T. Harris was insolvent or m fail-circumstances when he purchased goods from the Bauer Grocery Co., on the 18th and 26th days of March, 1892. As pertinent to that inquiry, it can not be doubted that the evidence of Overstreet, Scott, Didlake and Marcks, to the effect that checks drawn about that time by said Harris individually and as a member of the firm of Harris Bros, were dishonored and thrown out by the banks upon which they were drawn, was properly allowed to go to the jury.—Brown v. Montgomery, 20 N. Y. 287.

Another material inquiry in the case was whether the defendant, Hudson, had knowledge or notice of the facts which constituted the right of plaintiff to rescind the sales to Harris and reclaim the goods. One of those facts being Harris’ insolvency, and there being evidence that he was insolvent, it was competent, as tending to bring notice of his insolvency home to Hudson, to prove that he had the reputation of being, and “was, mighty slow about paying his debts.” The fact that Harris was slow about paying his debts was indeed some evidence of insolvency and admissible on that ground. The fact that he had the reputation of being slow in that regard, while , not admissible to prove insolvency, was well received as tending to show Hudson’s knowledge of Harris’ embarrassed condition, shown to exist by other evidence, when the former purchased the goods in controversy from the latter.—Branch Bank v. Parker, 5 Ala. 731; Price v. Mazange & Co., 31 Ala. 701.

Many questions were put by defendants to plaintiff’s witness, Dunham, who was an agent of plaintiff, for the purpose of showing that he, as such agent, or the plaintiff, had employed a detective to hunt up evidence in the case. These questions were disallowed by the court on plaintiff’s motion, and exceptions were reserved by the defendants. There was no error in this. The proposed evidence had no relation to any issue in the case, nor did it tend to discredit any particular testimony adduced by the plaintiff, but the fact sought to be proved might have been used in argument to unduly and wrongfully prejudice the jury against the plaintiff, and against the credibility of the evidence offered by the plaintiff, though, as far as the record discloses, no fact brought to light by the detective was in evidence before the jury.

There are several other exceptions by defendant to the rulings of the trial court on the admissibility of testimony, but we deem it unnecessary to discuss them. They are, in our opinion, without merit, and we shall not devote any time to them, especially since the appellant’s counsel has not deemed them worthy of a brief.

The bill of exceptions does not purport to set out all the evidence, and for this reason we can not affirm that ‘the lower court erred in refusing to give the general ■charge requested by the defendant. Moreover, to say the least, the evidence was directly or inferentially conflicting on all the real issues in the case ; and for this, the court properly refused the general affirmative charge to the defendants.

Charges 1 and 3 requested by defendants are abstract. There is no evidence shown by this record that Harris, when he ordered the goods from plaintiff, had enough property to pay all his debts as they became due, and this regardless of the exclusion or inclusion of his exemptions and of the goods he bought from plaintiff.

On principles explained in Traywick v. Keeble & Co., 93 Ala. 498, charge 4 was properly refused.

Charge 5 is bad in that it assumes that the demand made on the Hudsons by Haigler was in the latter’s capacity as deputy sheriff, when the evidence shows that he acted in reality as the private agent of the plain- . tiff.

Charge 6 of defendant’s series is bad in that it pretermits all inquiry as to whether Harris fraudulently concealed his financial condition. Such fraudulent concealment, with a purpose not to pay for the goods ordered, is as vitiating as fraudulent misrepresentations.

Charge 7 was well refused to the defendants because it puts the burden of proving notice to the defendants absolutely and unconditionally on the plaintiff, when the rule is that the onus of proving such notice is upon the plaintiff in actions like this only where the defendant is shown to be a puchaser for value. The necessary effect of the charge would have been to require the plaintiff to prove that Hudson had notice of Harris’ fraud, though the jury might have found that Hudson was a mere volunteer in the transaction, having no rights, either with or without notice other than Harris, the fraudulent vendee, would have had.—Kyle v. Ward, 81 Ala. 120. This charge is also bad in that it assumes that Harris must be shown to have been insolvent, when it would suffice to show that he was in failing circumstances.

Charge 8 is bad in that it refers a question of law to the jury, namely, whether Harris, under all the circum- ' stances, , was' entitled to retain' the- goods'as against'the plaintiff; It was the jury’s province to find what these circumstances were, and upon their finding the -rights of the parties were to be .determined by the court through instructions to the jury. The latter part of this charge is, moreover, an abstraction in this case. If the goods belonged to Harris in such sense as that they might constitute in part his exemptions from levy and sale for the payment of debts, his sale of them to Hudson would be good against the plaintiff wholly irrespective of the existence vel non of a right to claim them as exempt.—Traywick v. Keeble, 93 Ala. 498. When refered to the facts of this case the oral instruction that “a man is said to be insolvent when his property can not be made to respond to his debts,” is not erroneous, however it might be as a general proposition. No matter how much property Harris may have had, if it was so held as that his creditors could not reach it, and, concealing this fact from the plaintiff, he bought the goods in question having an intention not to pay for them, this is as much a fraud on the seller as if he had had no property at all, since though having property he will not, and the seller can not force him to, apply it to the payment of the price of the goods.

The proposition of the court’s oral charge, that “a person would be in failing circumstances when his property is being placed where his creditors could not reach it, ” is in our opinion unsound, but it is also abstract: there is no evidence in this record that Harris’ property was being placed where his creditors could not reach it, which means of course, that property which is and continues to be his is being hidden out from his creditors, and not, in the nature of things, that he has disposed of or is disposing of his property, or some part of it, to one or more of his creditors in payment of debts, which is all that is shown here. This charge then was erroneous as a proposition of law, but it was also outside of the case; had nothing to do with the case. Prima facie abstract charges do not prejudice the party against whom they are asked because they concern matters not in the case ; and they do not afford grounds for reversal, unless we can-see they in fact mislead the jury to the prejudice of the party excepting. This we can not see in the present instance.

We understand the remaining clause of the oral charge, to which an exception was reserved, to declare in effect that if Harris was in failing circumstances, and bought the goods for the purpose of paying a debt he owed a third person with them and had the intent not to pay for them, and failed to disclose these facts to the plaintiffs, such failure would be a fraudulent concealment, which .would, in connection with the facts themselves, authorize a rescission of the sale by the sellers; and that is the law as laid down by this court in repeated decisions.

The motion for a new trial was made in the court below after the cause had been removed from that to this court by appeal. It will suffice to say, in respect of the exception taken to the action of the city court overruling that motion, that that court had no jurisdiction to entertain it and, of course, no power to grant it.

The judgment of the city court is affirmed.