Snook v. Davis ( 1858 )

Christiancy J.:

The first error assigned raises the question, whether the justification by the defendants under the judgment and execution against Robertson, was admissible under the general issue without notice. For myself, I am strongly inclined to the opinion that it was not, and that notice of the defense should have been given. But my brethren all hold this defense admissible without notice; and as we all agree in the result upon another branch of the case, I yield to their opinion on this point, and abstain from discussing it. The result is, that there is no error in the ruling of the court below upon this point.

The other assignment of error raises the question, whether the judge erred in charging'the jury that, “By the terms of the written contract between the plaintiff and Robertson, all the goods purchased by the plaintiff under the same became and were the property of Robertson as soon as the same were delivered into his possession, and that the legal effect of the contract was to constitute, and that it did constitute, a sale from plaintiff to Robertson of¿the g'oods purchased by the plaintiff and delivered to Robertson pursuant to the contract, and rendered the goods subject to the claims of Robertson’s creditors,” &c.

. This charge relates only to goods purchased by the plaintiff.\ and delivered to Robertson under the agreement; it is entirely distinct from, and independent of, any question which might have been raised whether any of the goods so purchased by the plaintiff were fraudulently purchased with the money or capital of Robertson, to shield them from the creditors of the latter; or whether any of the property claimed by ¡baintiff had been purchased by Robertson independent of the agreement, and fraudulently cloaked under it; and this charge rendered the question of fraud between plaintiff and Robertson, as depending upon the parol evidence given in the cause, wholly immaterial; and no such question of fraud appears to have been submitted to the jury. If, therefore, the legal effect of the contract, independent of any extrinsic evidence, was not such as to vest the property in Robertson, as stated by the charge, the judgment must be reversed.

Independent of any question of fraud raised by extrinsic evidence, did this contract have the effect to vest in Robertson the property in the goods purchased and placed in the store by the plaintiff in ¡pursuance of its terms, and did the contract constitute a sale of such goods, as stated by the charge? We think it did not; but that, construing it with reference only to what appears upon its face, it was substantially a contract by which the plaintiff undertook to furnish goods to Robertson, the latter to sell them, and to carry on the business for plaintiff, and in his store, so long as the plaintiff chose to employ him in that capacity, and that Robertson was to receive for his compensation all that could be made from the business over ten per cent., after paying cost and transportation ; that Robertson was to be responsible for any bad debts he should make in the business, as in the case of a del credere commission, plaintiff having the right to close the business at any time, and to take all the goods, or such of them as he should see fit, with the undertaking on the part of Robertson to purchase the goods on hand, or any part of them, as the plaintiff should elect, at cost and transportation; and that the goods, during the continuance of the business, and while in the course of transportation, should be at the risk of Robertson.

It is contended that the risk is an incident of ownership, and therefore conclusive of the ownership of the goods by Robertson; but though a usual, it is by no means an inseparable incident — it is only so in the absence of contract to the contrary. It is perfectly competent for a clerk, bailee, or any other person dealing in any way with the property of another, by contract to take the risk upon himself, as Robertson did in this case.

It is very possible if the question had arisen between the vendors of these goods on the one hand, and Snook and Robertson on the other, in an action to recover against the two latter the purchase price of the goods, Robertson might have been held liable to such creditors as a partner. But no such question is involved here. The question here presented on the construction of the contract, is, whether by the provisions of the contract itself, as between the parties to it, the property vested in Robertson. We think the legal effect of the contract, without reference to extrinsic evidence, was not a sale, though it might become such at the option of plaintiff, at any time when he saw fit to close the business.

But here the question may arise, whether the contract, upon its face, is such that the court can say, as matter of law, without evidence aliunde, that it was a fraud upon creditors, or conclusive evidence of fraud.

Neither the contract as a whole, noriany stipulation of it, is in any manner inconsistent, with entire honesty of purpose and fair dealing. It might "easily be carried into full effect, in letter and spirit, without any fraud upon creditors or other persons; and, in fact, if carried into full effect according to the fair and natural import of its termgit could not well operate as a fraud upon creditors; as the goods were to be purchased and paid for, not with the money or capital of Robertson, but of the plaintiff. There is not then any thing upon the face of the contract, which can enable the court to treat it as fraudulent towards creditors, or as any evidence that property of Robertson was shielded by it to their injury.

It is, however, easy to see that such a contract might be made a very convenient cloak of fraud upon creditors; but this would not be in pursuance, but only under pretence of the contract. Thus, by concert between them, the plaintiff might have purchased goods with money furnished by Robertson, or Robertson might purchase himself, -place them in the store, and seek to hold them under pretence of the contract; and in a great variety of ways the contract (like most other contracts, and perhaps more than most others), Was capable of being perverted to a fraudulent purpose. But whether it was so perverted or not — whether the contract was in good faith, or intended to defraud — whether any thing done, or claimed to be done, under it was fraudulent or not— Were questions of fact for the jury, depending upon evidence outside of the instrument itself, the facts and circumstances leading to the contract, the situation and conduct of the parties in reference to the subject-matter, and all other circumstances from which the intent might be inferred, and the nature of the whole transaction ascertained.

There was evidence of this character in the present case, as appears by the bill of exceptions, and from which the jury might or might not have found a fraudulent intent, and from Which they might have determined the question of ownership) of the property. But the effect of the charge was to withdraw all such evidence from the consideration of the jury, and to make the whole controversy turn upon the construction of the contract as a question of law. For these reasons, the judgment must be reversed and a new trial granted,

The other Justices concurred.