Abbott v. Joy , 47 Me. 177 ( 1859 )

The opinion of the Court was drawn up by

Cutting, J.

This is an action on the case, instituted on August 7, 1856, under the provisions of R. S., c. 148, § 49, by an alleged creditor, against the defendant for knowingly aiding or assisting a debtor in the fraudulent transfer of his property.

Ia Thacker v. Jones, 31 Maine, 528, it was held that, in such an action, the plaintiff must show that he was a creditor at the time of the fraudulent transfer, and has continued to be such up to the time of trial.

The plaintiff, aware of this rule, has endeavored to bring himself within it. • He shows a sale of a stock of goods, by one Smith to Samuel T. Joy, a son of the defendant, for which the son gave his negotiable note for eight hundred and forty-six dollars and twenty cents, payable to Smith on demand, with interest, dated Dec. 18, 1855. He also produces this note indorsed to himself, on May 5, 1856. He further shows a transfer of the stock of goods from the son to his father, the defendant, on June 20, 1856, which he alleges was fraudulent, and intended to prevent an attachment of the goods by the plaintiff.

The production of the note, thus indorsed, was sufficient, jprima facie, to prove the plaintiff to have been a creditor at the time of the sale from the son to the father; but it was not conclusive. The relationship existing between creditor and debtor was a material allegation, and one which the defendant might well traverse. He might have introduced any evidence which the debtor could have done in defence, in an action on the note. Had the plaintiff recovered judgment in his suit on the note against the son, the latter, being a party of record, would have been estopped to deny its validity, and the defendant also, collaterally, except for covin or.collusion between the parties. Adams v. Balch, 5 Maine, 188. But where no judgment has been rendered on a default, the rule is otherwise. And this case discloses that — “ There was evidence introduced tending to show that Smith indorsed the note to the plaintiff to secure him against his liability as bail for Smith. Smith and- the plaintiff both testified that the transfer of the note to the plaintiff was absolute.” Whereupon, the defendant requested the Judge to instruct the jury, “ that if, at the time of the sale of the goods from Samuel T. Joy to the defendant, the plaintiff held the note declared upon only to secure him for his liability as bail for Smith, and the condition of the bail bond had not been broken, he had not such, a just debt against Samuel T. Joy as to entitle him to recover in this action.” The Judge refused to give such instruction, and rightfully; for neither the evidence, nor the requested instruction, negatived the plaintiff’s continuing liability on the bail bond. Had they been otherwise, a very different question would have been presented. And we are not prepared to say, if the liability had terminated, and the plaintiff had been saved harmless, that be, as the mere trustee of Smith, and to whom he would be accountable for the note, could be considered the holder of such “just debt or demand” as would enable him to maintain this action. If the continuing liability had been questioned, and any evidence touching that fact had been presented to the jury, then the Judge’s subsequent remarks to the jury would have encroached upon their province, because he decided as a matter of fact that the indorsement was absolute, when, upon that point, the testimony was conflicting. But, as the case is presented to us, that instruction becomes immaterial, for, whether the note was indorsed absolutely or conditionally, until the condition had terminated, which was for the defendant to show, that prima facie evidence as to ownership, arising from the production of the note at the trial, by the plaintiff, and indorsed, has not been overcome.

Exceptions were also taken to the admission of certain testimony. “ But no reason was given for the objection, at the trial, and none is stated in the exceptions.” Emery v. Vinal, 26 Maine, 295; Kimball v. Irish, Ib., 444; Glidden v. Dunlap, 28 Maine, 379. And, besides, the evidence thus admitted was admissible for the purpose of contradicting that previously introduced by the excepting party. The instructions of the Judge to the jury upon this evidence were sufficiently guarded to render it ineffectual to produce any influence unfavorable to the defendant upon the question at issue.

Exceptions overruled, and Judgment on the verdict.

Tenney, C. J., and Rice, Appleton, May, and Goodenow, JJ., concurred.