Vennard v. McConnell , 93 Mass. 555 ( 1866 )

Bigelow, C. J.

We are of opinion that none of these exceptions can be sustained.

1. The questions put to McConnell, one of the assignees, were clearly incompetent. Passing by all other objections, a sufficient and decisive reason for refusing to allow them to be put is, that if answered in the affirmative they could have elicited no fact which had any tendency to support the issue on the part of the appellant. Viewed in the most favorable aspect for him, the answers would only have shown that other persons engaged in the same business qs that carried on by him were, at or about the time inquired about, unable to pay their debts in the usual course of business, and were compelled to ask of their creditors an extension of the credit originally granted them. In other words, the appellant sought to prove that there was a general insolvency among a certain class of persons in the spring and summer of 1861. It is too obvious to admit of discussion that evidence that others employed in similar pursuits were in an insolvent condition had no tendency to prove that the appellant was not insolvent, or that he had not reasonable and sufficient ground to believe himself insolvent.

It is urged that proof of the habits and usages of the trade in which the appellant was engaged and of the usual course of business for the year were admissible, for the purpose of gk plaining the pecuniary condition of the appellant and rebutting the allegation of unlawful preferences of certain of hia creditors It is doubtless true that in many cases the abstract rule defining the insolvency of a trader may be modified by the habits and modes of dealing in the town or city where a debtor resides, and of the particular branch of business in which he may be engaged. But this proposition does not extend far enough to embrace the case which the appellant attempted tc prove. His offer was not to show that an established usage of business prevailed in carrying on the trade in which he was engaged, but only that during a particular season in the year 1861 large numbers of persons employed in the same kind of business were unable to pay their debts as they fell due. This was in effect nothing more than an attempt to show a general condition of insolvency among a certain class of persons at the time designated. Clearly evidence of such a nature had no bearing, direct or remote, on the subject matter of inquiry before the jury.

2. The instructions asked for were rightly refused, and those which were given were correct and well adapted to the issues which the jury were to determine. If they are open to any criticism, it is that they were too favorable for the appellant. Evidence to prove the general disturbance of business created by the civil war in the spring and summer of 1861, and the consequent inability of those engaged in certain branches of trade to pay their debts as they matured in the regular course of business, as conducted in seasons of public tranquillity and commercial prosperity, bad no relevancy to the questions upon which the jury were to pass. The rule of law by which a condition of solvency or insolvency is to be ascertained and determined could not be affected or modified by any sudden, temporary or general embarrassment of the operations of trade, causing widespread monetary distress and mercantile disaster, whatever may have been the causes which led to • such results. Nor can it be doubted that the appellant was insolvent in the legal sense of that word, if he was unable to pay his debts as they fell due ajcording to the usage of the trade in which he was engaged, and of the place in which he carried on his business, in ordinary times and under ordinary circumstances, notwithstanding many rthers employed in simi1®" occupations may also have been in a like condition of insol vency. The proposition cannot be maintained, consistently with the established rules of law, that a debtor ceases to be insolvent because, being unable to pay his debts in the regular course of business, his creditors have entered into an agreement to extend the time of payment of their debts or that the payment of a debt by a party who is insolvent cannot be regarded as a preference if made with the hope and expectation by the debtor that he will be able eventually to pay all his debts in full. The adjudicated cases leave no room for doubt on these points, Thompson v. Thompson, 4 Cush. 127. Lee v. Kilburn, 3 Gray, 594. Holbrook v. Jackson, 7 Cush. 136, 149. Barnard v. Crosby, 6 Allen, 327.

But it would not avail the appellant in this case if it could be made to appear that the instructions to which exceptions were taken were in any respect erroneous or defective. The object of submitting issues to the determination of a jury in cases like the one at bar is to ascertain whether any facts exist, the legal effect of which is to deprive the debtor of receiving a discharge from bis debts under proceedings in insolvency. In this case the jury have found on a distinct issue, submitted to them under instructions to which no exception is taken, that the appellant, being a merchant or tradesman, did not keep proper books of account subsequent to July 6th 1856. This fact of itself, under Gen. Sts. c. 118, § 87, operates to deprive him of his discharge. It would seem, therefore, that all exceptions taken to the rulings of the court upon any other issue in the ease are rendered wholly immaterial.

3. The separation of the jury without permission of the court before they had agreed on all the issues submitted to them was irregular and improper. But we cannot see that this misconduct of the jury- ought to impair or affect the validity of their finding on other issues which were submitted to them, or that it should be allowed to operate to deprive the other party of the benefit of their verdict on the questions upon which the jury luly passed. It does not appear that the issues on which there was no verdict are so connected with or related 1c those on which they rendered a verdict as to make it probable that their finding would have been different, if they had been obliged to determine all the issues submitted to them. As the case is presented on the exceptions, each issue was distinct and separate. Although some of the same elements may have been involved in all the issues, it is clear that no one was exactly identical with any other. It is therefore the unavoidable inference that the failure to reach a verdict on some of the issues did not result from inability to agree on any element common to all, but that it must have arisen from a disagreement on some fact peculiar to the issue on which the jury failed to agree. Such being the state of the case, we are of opinion that the verdict was rightly affirmed upon those issues on which the jury agreed, and that the appellees were properly allowed to waive those issues which were left undetermined. Hayward v. French, 12 Gray, 453, 460.

Exceptions overruled.