Skowhegan Bank v. Cutler , 52 Me. 509 ( 1864 )

The opinion of a majority of the Court was drawn by

Davis, J.

By the laws of this State, any one, who knowingly aids or assists a debtor in a fraudulent transfer or concealment of his property to secure it from creditors, is liable to any creditor in double the amount of the property transferred or concealed, not exceeding double the amount of such creditor’s demand. R. S., c. 113, § 47.

In the case at bar, it is alleged in the writ that one Lysander Cutler, in 1856, was indebted to the Skowhegan Bank in the sum of five thousand dollars; that he was the owner of six shares of the capital stock in the People’s Bank, of the value of six hundred dollars; that, in order to secure said stock from his creditors, he fraudulently transferred it to the defendant; and that the defendant knowingly aided and assisted him in so doing. Upon the trial of the case, certain questions of law were reserved, which are now presented for our determination.

In regard to the indebtment of Lysander Cutler, and the fact that he owned the bank stock, no question is raised. Did he transfer the stock to the defendant?

It is not denied that the defendant received the certificates, with indorsements purporting to be transfers to him, and that he has since that time transferred them to other parties. But he contends that the transfers to him were insufficient to give him the title, as against the creditors of Lysander Cutler, and that they were therefore not injured thereby.

Such a transfer may be made by an indorsement and delivery of the certificate of stock; but it is not valid, except between the parties thereto, " until it is entered on the books” of the bank.

The plaintiffs introduced the stock ledger of the People’s Bank, as proved by the testimony of Percival. Whether it was the book of the bank, kept for that purpose, was a question of fact, properly proved in that way. No attestation by the cashier, or by any other officer, was necessary.

By that book, it appeared that Lysander Cutler purchased and paid for six shares of the original stock of the bank; and that he transferred them to the defendant, Dec. 1, 1856.

One of the shares was originally purchased by Lysander Cutler, a year after he purchased the others. He therefore held two certificates, — one for five shares, and the other fox-one share. In transfex-ring them to the defendant, he indorsed upon the certificate of five shares a transfer of " the within share;” and it is argued that the transfer was therefore invalid.

Although shares "may be transferred by the indorsement and delivery "of the certificates, it does not follow that they may not be transferred in other modes. Such indorsement and delivery is but the evidence of the transfer. The fact of the transfer appears, in this ease, as well by other evidence, as by this. If there is any ambiguity in the indorsement arising from the use of the singular number instead of the plural, as between the parties it would be construed against the vendor. But when no question has been raised between the parties, and the vendee has taken and sold them all, without controversy, it would be absurd to allow him to deny his own title in any litigation with other persons.

It is said, however, that the stock ledger does not show "the number and designation of the shares” transferred to the defendant; and that the transfer was therefore invalid as to the creditors of Lysander Cutler.

It may be difficult to determine what meaning, if any, to give to the word "designation,” in the statute of 1841. It was regarded as tautological, and omitted in the subsequent revision. A share in the capital stock of a corporation is merely some aliquot part of it, and not any particular part. Any designation, therefore, except by stating the owner or owners, would seem to be impossible. Even if the shares were consecutively numbered, of which there is no evidence, this would be the same. For, as a share is not any particular part, but merely an intangible, undivided proportion of the whole, the number would but designate the successive owners.

The stock ledger, in this case, shows that Lysander Cutler purchased six shares of the original stock, receiving his title, or evidence of it, directly from the corporation; and that he transferred those six shares to the defendant. If any designation of the particular shares was necessary, it appears, so far as was possible, upon the record.

The transfer being proved, it was for the plaintiff to show that it was fraudulent on the part of Lysander Cutler; that he did it with an intention thereby to secure it from his creditors.

In order to prove this, certain conversations of Lysander Cutler with Coburn, Sept. 29, 1856, were proved, against the objection of the defendant. It may be doubted if the statements of Cutler had any tendency to prove fraud on his part. The counsel for the defendant claims that they were irrelevant to the question in issue. If they were so, and might have been excluded, we cannot perceive that the defendant could have been injured by their admission. It often happens that some facts not relevant are proved during a trial; and, though this should be carefully guarded against, lest the jury be confused by it, a new trial will not be granted on account of it, if the facts proved are such as could not have injured either party by misleading the jury.

In regard to the transaction of Dec. 7, 1856, the evidence was not admissible to prove " false pretences” on the part of Lysander Cutler, as stated by the Court. But, if it was admissible on any ground, it is immaterial what reason was given for it. This was but a few days after the transfer of the bank stock. And proof of other transfers made by the debtor, about the same time, has always been admitted in this class of cases. The exceptions do not show the contents of Cutler’s letter; and there is nothing reported from which we can conclude that any evidence was admitted except of the acts of Cutler, and his written declarations accompanying his acts, in securing the transfer of the funds in the Skowhegan Bank to himself, and from him to the defendant. What other transfers of property from him to the defendant were proved at the trial, the case does not show. But that this kind of evidence is admissible on the question of the fraudulent intent of the debtor, there can be no doubt. Warren v. Williams, ante, p. 343.

When the verdict was returned into Court by the jury, it was not signed by the foreman. Whether it is really necessary, in any case, when the verdict is returned, announced, affirmed, and recorded, that it should be thus signed, we need not determine. In criminal cases no written verdict is returned. The foreman announces it verbally, and it is entered upon the record. But if a written verdict is necessary, signed by the foreman, the fact that the signature was written in open Court, instead of the jury room, is no objection to it.

The plaintiff was not entitled to interest. This was given by the jury, under the instructions of the Court. But it was stated in a distinct and separate sum in the verdict. If the plaintiffs will remit the amount of interest, the verdict will be allowed to stand, and judgment will be rendered upon it. If the amount of interest shall not be remitted, the verdict will be set aside, and a new trial will be granted.

Appleton, C. J., Walton, Dickerson and Daneorth, JJ., concurred.