Kuhn v. Gustafson ( 1887 )

Beevers, J.

i. frauduimce^igoo^ rteucoaiidV1' instructions.

2 _. S.U0 ?ug0toepayUS" debts.

It is claimed that the verdict is against the weight of the evidence and the instructions of the court, and a^so several °f the instructions are objected to. We lla?e read tlie rec01'd and argument of counsel, and deem it sufficient to say that we cannot jnterfere wjtj1 fche verdict on the grounds that it is not supported by the evidence or is against the instructions of the court. The material question submitted to the jury was whether the sale of the goods was fraudulent. Tire burden of this issue was on the defendant, and that the evidence tends to show fraud must be conceded; but its sufficiency was a question for the jury, and, at most, it may be said that different minds might reach different conclusions in relation thereto. It is by no means certain that the sale was of a fraudulent character. Counsel concede that the instructions are correct as abstract questions of law; but their contention is that they are not applicable to the facts in this case. In this view we do not concur, but, on the contrary, think they fully, fairly and correctly submit to the jury all controverted questions in the case. We do not deem it necessary to set out the instructions, or do more than, in this general way, indicate our view in relation thereto. An instruction was asked and refused, which, in substance, states that if Allen conveyed all his property liable to execution, and did not pay his debts, such sale is fraudulent on kis part, and, if the plaintiff had knowledge 0f gjjgp facj;gj they must find for the defendant. This instruction was correctly refused, because the law is otherwise. It has never been held, we think, that a sale of all a person’s property, and a refusal to pay his debts, constitutes fraud. That it is a badge of fraud is conceded; but the instruction asked goes much further than this, and omits the element of fraudulent intent.

3 _. evi_ tweTamount onmpuidmg II. The defendant introduced evidence tending to show that Allen was indicted in January, 1886, in the federal court, for selling intoxicating liquors without having Paid the tax imposed by the laws of the United gfcateg. atld ^his indictment was pending at the time the plaintiff purchased the goods. The defendant further proved that, on the day succeeding the sale, Allen was fined $100, and costs, by the federal court. The defendant offered to introduce in evidence the statute of the United States prescribing the penalty for such offense, which may be a fine uot exceeding $5,000, nor less than $100. This evideuce was objected to, and the objection sustained. Counsel claim the court erred in so holding, because the fact that so large a fine may be imposed has a tendency to show that the sale was made to avoid its payment. But as the defendant introduced evidence showing that Allen was convicted two days before the sale, and that he was fined as above stated afterwards, no possible prejudice could have resulted from the rulings of the court. The jury knew that Allen had been convicted of a crime, and that punishment would follow. Besides this, the statute is the law of the land, which every one is presumed to know. It cannot be regarded as a fact, nor did it tend to prove a fact.

i. appbai.: practice: errornot called to attention of trial court, III. When this action was commenced, the plaintiff attached to, and made a part of the petition, a bill of particulars of the goods seized by.the defendant for , , , which a recovery was asked. Dunns' the pros- " ° ° pess of the trial, it was disclosed that there were other goods taken, and thereupon the plaintiff sought and obtained leave to amend the petition, so as to base a right to recover for the goods last referred to, and introduced evidence to support such claim, which evidence was objected to, but the objection was overruled. This is said to be erroneous, because in fact no such amendment was filed; and it does not affirmatively appear that it was. The ruling of the court was based on the ground that an amendment had been filed, and the trial proceeded accordingly. We are inclined to think that counsel understood that an amendment was filed; but whether this is so or not is immaterial. Counsel knew the ground on which the court made the ruling, and we think they should have called the attention of the court to the fact that the proper amendment was not filed, and therefore asked the court to strike out the evidence; and, as this was not done, the defendant cannot raise the objection that no amended petition was filed for the first time in this court. We desire to say that the verdict was in the nature of a special verdict, and that we are inclined to think the defendant was in no respect prejudiced by the ruling, conceding it to be erroneous.

5 evidence-incompetent: exclusion of. IT. The defendant asked a witness the following question: “Did you have a conversation with R. Allen, in Fort Dodge, on the 21st day of June, 1886, — -the day t^iat D- Allen had his trial in the federal court a1. j'qj.j. Dodge?” An objection to this question was sustained, upon what ground we are not advised. Appellant claims it was competent and material to show that Allen sold the goods for the purpose of defrauding his creditors, and that it was competent to prove this fact by his declarations made when the plaintiff was not present. Conceding this to be so, we do not know that such evidence was expected to be elicited. The declarations of Allen were not competent against the plaintiff, and therefore we think counsel should have disclosed what they expected to prove, or have framed the question so as to indicate on the face of the question its object and intent. In other words, it should have been shown by the question or otherwise that the evidence sought to be obtained was both material and competent. (Jenks v. Knotts Mex. Sil. Mining Co., 58 Iowa, 549; Mitchell v. Harcourt, 62 Id., 349; Votaw v. Diehl, Id., 676.)

Other assignments of error are insisted upon, which it is . not deemed essential should be specifically referred to. They all, we think, are based on the thought, generally stated, that the verdict is against the evidence. Such errors should be regarded as reasons why the verdict should have been for the defendant, and upon this branch of the case sufficient has been said in the first paragraph of this opinion.

Affirmed.