Nelms v. Steiner Bros. , 113 Ala. 562 ( 1896 )

BRICKELL, C. J.

1. The objections specified to the introduction in evidence of the attachments, of the endorsements thereon of the levy upon and sale of the goods, (the taking and conversion of which, constitute the gravamen of the action), made by the sheriff, a party defendant, was, that the attachment was a part only of the record. Admitting this to be true, we do not perceive the necessity for the introduction of any other .part of the record by the plaintiffs. If there were other parts, which would have lessened the force of these endorsements as evidence, that the goods had been taken .and by sale converted by the sheriff, the defendants could have introduced them. There is no presumption that there was not continuous prosecution of the attachment, or that the other parts of the record would have neutralized or qualified the force and effect of these endorsements as evidence for the purposes for which they were introduced. When proceedings have ripened into a final judgment, and the judgment is relied upon as an estoppel, or as a bar, it may be true, that the whole record must be produced: — Freeman on Judgments, § 407, 1 Green. Ev., § 511. It is obvious, the objection finds no support in this principle.

2. The accounts against Levy, produced by the plaintiff Steiner, should not have been received as evidence. In Grant v. Cole, 8 Ala. 519, an action upon an open account for goods sold and delivered, the trial court permitted the account, the list of items, to go in evidence. Tile court said: “The ‘account,’ by which we understand the paper upon which the items composing the account were stated, was not testimony for the jury for any purpose, as it is the mere written declaration of the party himself.” Memoranda of this character, prepared by the party for the purposes, or.in the course of a trial, is not a species of evidence to be encouraged ; and if admitted, to avoid misleading the jury, would necessitate very careful, precise instructions, that they were not in themselves evidence, and that they must not be so regarded, or looked to for any other purpose than reference to the items, and the comparison of them with the evidence having a tendency to support them; they are not of themselves distinct, independent evidence.-Robinson v. Allison, 36 Ala. 525.

3. In all controversies involving questions of fraud, a wide range of evidence is necessarily allowed, for it is but seldom, that fraud can be the subject of direct, positive evidence ; usually it is the matter of inference from facts and circumstances, naturally and logically indicating its existence. In the case of Snodgrass v. Br. Bank of Decatur, 25 Ala. 174, it was said by Goldthwaite, J.: “As a general rule, great latitude is allowed in the range of the evidence, when the question of fraud is involved. It is indispensable to truth and justice that it should be so ; for it is hardly ever possible to prove fraud except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative .position a reasonable time before, at, and a reasonable time after, the time at which the act of fraud is alleged to have been committed.” In view of the long, continuous business relations between the vendor and the vendee, existing before, and which seem to have existed to some extent after the alleged sale, we are of opinion, the court below erred in the rejection of evidence, that the vendor was present at the sale made by the sheriff under the attachments, purchased, for and in the name of the vendees, parts of the property sold, the character of the property purchased, the prices bid for it, and the payment of the bids in the name of the vendees. The probative force of the facts is not the matter of inquiry; that is for the consideration of the jury; the relevancy and sufficiency of evidence are distinct inquiries. The test is, whether these facts had any tendency to throw light upon the transaction. If they had, if directly'or indirectly 'they bore upon the inquiry into the fairness and good faith of the sale, their admissibility is dependent not upon their force but upon their bearing. — Bump on Fraud. Convey., §§ 590-91. There is, perhaps, in civil cases, triable by jury, no matter of more difficulty, presented to the court, than to draw the precise line, which, upon an issue of fraud, separates facts or circumstances which are relevant, from those which are irrelevant. Each case is controlled, in a large degree, by its own peculiar facts and circumstances. It is quite an error, too often pressed upon the court for consideration, that each fact or circumstance, or item, or particle of evidence, must be tested by its own intrinsic force, without regard to its relation to, or connection with, other evidence in the case ; and if of itself it does not prove fraud, it should be excluded. It is the bearing, not the independent force of the particular fact or circumstance, upon which its relevancy depends. The whole theory and reason of the rule which allows a wide range, or large latitude of evidence upon an issue of fraud, is-, as is said in B. & O. R. R. Co. v. Hoge, 34 Penn. St. 221, because fraud, “is a subtle element, and is to be traced out, if at all, by the small indices discoverable by the wayside where it travels; and, to enable courts and juries to detect it, they must in most cases, aggregate many small items, before the true features of it are discernible.”

4. Great latitude of interrogation on cross-examina^ tion is permitted, and there is much of difficulty in determining its limits. Ordinarily, it may not be extended to immaterial, or mere collateral facts, not even for the purpose of probing the memory, or contradicting the witness. Whether the plaintiff under cross-examination, heard the testimony of Rudulph in reference to the condition of the inventory, seems wholly immaterial and irrelevant. If he heard it, his silence at the time could not he construed into an admission of its truth, nor did it hinder him from explaining or contradicting it, if explanation or contradiction was necessary. As a fact or circumstance having a tendency to show a fabrication of evidence by the plaintiff, as is insisted by appellants, it was too remote.

5. The remaining assignments of error relate to instructions given the jury, at the instance of the plaintiffs ; and observing the practice which has long prevailed in this court, we will consider only such of the assignments, as are insisted on in the argument of the counsel. The first of these, relates to the first of the instructions. When read in the light of the evidence, fairly interpreted, the instruction asserts the legal proposition, that if fraud infected the transfer of the chattel mortgages, and the transfer was a subsequent transaction, independent of, and wholly disconnected from she sale of the goods, the vice of the transfer could not be visited on the sale, if that, in itself, was free from fraud. Adopting this interpretation, the instruction finds support in the cases of Johnston v. Br. Bank of Montgomery, 7 Ala. 379; Buford v. Shannon, 95 Ala. 205. The doctrine is, however, that evidence of other transactions which are fraudulent, and which are in point of time cotemporaneous, or nearly so, with the transfer assailed, is admissible. Their connection, is matter for the consideration of the jury,-when they are all between the same parties ; and they may shed light upon the intent of the parties.-Cummings v. McCullough, 5 Ala. 324; Dent v. Portwood, 21 Ala. 588; Benning v. Nelson, 23 Ala. 801; Bump on Fraud. Convey., (4th ed.), § 545. The force of the evidence, depends upon the probable connection of the several transfers or transactions ; and this depends largely upon the nearness in point of time of their occurrence, for if they are remote in point of time, the remoteness disconnects them, as was the case in Johnston v. Br. Bank Montgomery, supra. Without regard to the time of the occurrence, if they are shown to be independent, distinct, substantive transactions, the fraud of the one cannot be visited on the other, shown to be free from fraud.

6. The seventh and tenth instructions assert no more, than that the failure of the plaintiffs to introduce the vendor Levy as a witness, was not a circumstance to be considered against them. It must be regarded as the settled doctrine of this court, that the failure of 'a partv to call a witness, whatever may be the relations betw'' them, who is equally accessible, and equally und^ legal control of either party, raises no presumr not a circumstance to be considered, against him.-Patton v. Rambo, 20 Ala. 485; Jackson v. The State, 77 Ala. 18; Carter v. Chambers, 79 Ala. 223; Pollak v. Harmon, 94 Ala. 420; Bates v. Morris, 101 Ala. 282; Haynes v. McRae, Ib. 318; Crawford v. State, 112 Ala. 1.

7. The eighth instruction, in form and structure, is argumentative, and for that reason, if it could be regarded as the statement of a correct principle or proposition of law, should have been refused. Such instructions, to say the least, trench upon the province of the jury, and have more or less tendency to mislead or confuse them. The giving of them, has not in our practice, been deemed a reversible error, if they embody a correct legal proposition, unless it be shown clearly that the jury has been misled. The instruction is, however, essentially erroneous. It may be possible to reconcile the evidence, upon a hypothesis consistent with honesty of intent, and yet, it may not be capable, or susceptible, the one or the other word is not material, of a fair, or just, or reasonable reconciliation upon that hypothesis. While fraud is not presumed — while courts do not strive to force conclusions of fraud — in civil cases, all that is essential, is that the evidence shall produce in the minds of the jury, a reasonable conviction of its existence. Similar instructions were condemned in Pollak v. Searcy, 84 Ala. 262; Skipper v. Reeves, 93 Ala. 332; Smith v. Kaufman, 94 Ala. 364, after full consideration, and we do not deem it necessary to indulge in mere repetition of what was said in those cases. The case of Claflin v. Rodenbery, 101 Ala. 213, approving an instruction, substantially, if not literally, the instruction before us, is, upon this point, overruled.

8. We are not prepared to say, there was such weight of testimony against the verdict, as required the court below to set it aside and grant a new trial.-Cobb v. Malone, 92 Ala. 630.

For the errors pointed out, the judgment is reversed and the cause remanded.

Keversed and remanded.