Berkey & Gay Furniture Co. v. Thein , 89 Ill. App. 207 ( 1900 )

Mb. Justice Shepabd

delivered the opinion of the court.

The appeal having been dismissed as to the appellees Feltenstein and Kaufmann, upon their motion for lack of compliance by appellants with the order allowing an appeal, it seemingly remains for us to consider the case as to the appellees Atlas ¡National Bank and Siegel, Cooper Company only. Any review by us, therefore, of the original fraud alleged, is eliminated from the case except in so far as claimed participation therein by either of the two last named appellees may make it necessary.

Assuming therefore, that Thein and his associates planned, and so far as they were concerned executed, a gross fraud upon Thein’s creditors generally, the only question we need to decide is as to whether the two named appellees, or either of them, knowingly participated in the scheme and partook of its profits.

“ It is a fundamental principle that fraud is not to be presumed, and that where an act may be traced to an honest intent as well as a corrupt one, the former should be preferred.” Dexter v. McAfee, 163 Ill. 508.

Although there may exist circumstances surrounding a transaction that would excite the suspicions of an honest man, “ yet the rule remains that fraud will not be presumed but must be proved, and that it will not be inferred where the acts charged as fraudulent can be fairly accounted for consistently with all the evidence as done in good faith and for an honest purpose.” Chicago Stamping Co. v. Hanchett, 25 Ill. App. 198.

“Something more than mere suspicion is required to prove an allegation of fraud. The evidence must be clear and cogent and must leave .the mind satisfied that the charge is true.” Altman and Taylor Co. v. Weir, 34 Ill. App. 615.

There is another equally applicable and well settled principle of law that, in order to justify the setting aside of a transaction on the ground of fraud, it must appear that it was the intent of both parties to the contract to practice the fraud complained of.

“ Though it be true that fraud so vitiates and taints in law and equity every transaction as to render it void, not only as to the actuaí perpetrators but also as to those who connive at and seek to profit by it, still, it is not in harmony with the principles of law or equity to declare void a conveyance to an innocent purchaser because of the fraud of his vendor.” Dickerson v. Evans, 84 Ill. 451.

“ In order to impeach a conveyance for fraud, both vendor and vendee must be shown to have intended to commit the fraud before the deed can be avoided.” Hatch v. Jordon, 74 Ill. 414.

" The law is that both parties must contrive the conveyance with malice, fraud, covin, collusion or guile. They must both be guilty of the contrivance and intent.” Hessing v. McCloskey, 37 Ill. 341.

The transactions with the bank and with Siegel, Cooper Company were in numerous respects out of the ordinary course of business, and in some features excite suspicion; but on the other hand we are unable to specifically point out any one act, or a combination of acts, by them or either of them, that may not be properly consistent with the exercise of a free right of lawful and honest contract.

In a great commercial community large transactions both in money and merchandise are often made on short notice and without much previous acquaintance either between the particular parties or with the particular subject-matter of the contract.

Many, if not most of such dealings are the result of intermediate agencies, and the law is not disposed to disturb such transactions where it does not appear either directly or by circumstances that no honest and reasonably prudent dealer might engage in them without being chargeable with an evil and fraudulent design. And this is so even though the other party to the transaction has the perpetration of a deliberate fraud in view.

A recitation of the substance of the evidence as applied to the bank concerning the making of the loan by it, and as applied to Siegel, Cooper Company, concerning the purchase of the stock of goods, would require much space and probably be of little value in any other controversy and we omit it.

We have, however, examined into the whole evidence with careful attention in respect of every point made by appellants, and are convinced that the decree dismissing the bill as to the bank and Siegel, Cooper Company, was clearly justified.

In Lane v. Lesser, 135 Ill. 567; which was a case where, like this one, the evidence was taken orally in open court before the chancellor, the rule is stated to be well settled, “that when the trial court has an opportunity of seeing the witnesses and of hearing their testimony as it is delivered orally, the findings of such court upon mere questions of fact, where the testimony is conflicting, will not ordinarily be disturbed on appeal, unless such findings are clearly and manifestly against the preponderance of the evidence.” See also Coari v. Olsen, 91 Ill. 273; Loucheim v. Seyfarth, 49 Ill. App. 561.

But in the present case, there being so much to consider by way of inference, we have not restricted ourselves to applying the rule as stated, but have made a diligent and independent examination of our own, with the result that we are satisfied that the decree is right. Affirmed.