Avery v. Eastes , 18 Kan. 505 ( 1877 )

The opinion by the court was delivered by

Valentine, J.:

Jacob Gottlieb commenced an action in a justice’s court against T. D. Harris, An order of attachment was issued in said action, and delivered to James J. Avery, constable. Avery levied the same upon a team of horses, a wagon, harness, fly-nets, blanket, and whip, as the property of said Harris, and afterward sold the same. W. J. Eastes claimed the property, and commenced this action in the district court of Bourbon county to recover its value. A trial was had, and the plaintiff Eastes recovered a verdict and judgment against the defendants, Avery and Gottlieb, for the sum of $259.75. To reverse this judgment the defendants below as plaintiffs in error now bring the case to this court. They assign two grounds for error: 1st, that the verdict of the jury is not sustained by the evidence; 2d, that the court below erred in giving a certain instruction to the jury.

I. The question presented to the jury, and determined by the jury, was simply which side had the preponderance in a great mass of contradictory and conflicting evidence. Either side presented sufficient evidence, if it had been true, to have obtained the verdict in favor of that side; and the question for the jury was, simply, which of the evidence it would believe, and which it' would disbelieve. The jury found in favor of the plaintiff below, upon such evidence, and this court cannot now set the verdict aside.

II. The plaintiffs in error claim that the court below erred in instructing the jury that—

“If the jury believe from the evidence, that Harris sold the property in question in good faith to pay any particular creditor of his, to the exclusion of others, without an intention to defraud, but simply to prefer one creditor to another, although the plaintiff may have had full knowledge of such intent on the part of Harris, it would not vitiate the purchase of Eastes, the plaintiff.”

We cannot say that this instruction was erroneous. It would seem from the evidence, that the property once belonged to Harris; that Harris sold it to Somerville, and Somerville sold it to Eastes. Harris was present at the time Somerville sold the property to Eastes. Mrs. Harris was probably also present. Eastes held Dodson’s notes for $185, and interest. Harris owed Dodson about $200. When Eastes bought said property he gave to Somerville Dodson’s notes, and one of his own for $65. Somerville then handed the Dodson notes to Harris, and Harris handed the same (probably at that time) to his wife. This was on Saturday afternoon, of January 16th 1875. On the next Monday morning, early, Harris left the state, and has never returned. A short time afterward Mrs. Harris sent said Dodson notes by Eastes to Dodson, and Dodson accepted the same as payment to that extent of his claim against Harris. Eastes testified on the trial, among other things, as follows:

“Don’t know as Harris said much of anything at sale. He saw the trade taking place.” “1 knew Harris was.indebted to Dodson about $200, and believed that the Dodson notes which I gave Somerville were to be turned over to Harris by Somerville, and by Harris to Dodson.” “I turned the Dodson notes over to Somerville at the time I made the trade with him.” “I turned them over when ! bought the horses. Mrs. T. D. Harris got the notes. Somerville turned the notes over to Harris at that time.” “T. D. Harris left the notes with his wife. After that, she asked me if I ever saw old man Dodson. She asked me to turn the notes over to him, and I did so.”

It would also seem from the evidence, that Harris, prior to said transactions, had been in the coal business, and that he failed in such business. He was then able to pay a portion of his debts, but not all of them. And he did pay a portion of his debts, but not all of them. A portion of the testimony of Dodson, brought out by the defendants below on cross-examination, will' indicate something as to how Harris acted after his failure. Dodson says that he went to see Somerville after Harris left the state, “and made inquiries from him if Mr. Harris had left me [Dodson] the money, because I had understood that he had paid all other coal men up for their coal.” Now it is fair to infer from the foregoing facts, that said sale was made to Eastes by Somerville in the presence of Harris, for the purpose of obtaining funds to pay Dodson, and that it was all in good faith. After Harris left the state, and after Dodson received said notes, he had a settlement with Mrs. Harris, and she paid him the balance of his claim. Taking into consideration the foregoing facts, we do not think that said instruction was erroneous. >

The judgment of the court below will be affirmed.

All the Justices concurring.