Hislop v. . Hoover , 68 N.C. 141 ( 1873 )

In his complaint, the plaintiff alleges that he was in possession of a stock of goods on and before 19 February, 1869, which were in (142) store at Grier's storehouse, consisting of a general assortment of the value of about $1,200. That the defendant unlawfully took the goods, carried them away and still detains them.

The defendant denies the allegation contained in the complaint, and makes this statement in regard to the matter now in controversy. That the goods in question were the property of one Gallant, who had been selling goods in the same store for some years past, and that the plaintiff was his clerk. That Gallant owed him, the defendant, about $330; and to avoid paying this debt, made a fraudulent and pretended sale of the goods to the plaintiff, who was without means, and in fact no sufficient consideration whatever passed between the plaintiff and Gallant, and that the whole transaction was a sham and fraud. That he, the defendant, sued out a writ of attachment, levied the same upon the goods in question and that the sheriff still has possession of them, the estimated value of the same being about $600.

There was a verdict for the plaintiff. Rule for a new trial; rule discharged. Judgment, and appeal by defendant. (145) The action is brought to recover damages for a trespass in taking the plaintiff's goods. The defendant pleads that he recovered a judgment and had execution against one Gallant, to whom the goods belonged, and who had conveyed them to plaintiff with intent to defraud his creditors, and he justifies the seizure of the goods under the execution.

It was admitted that a part of the goods had belonged to Gallant, and there was evidence tending to show that Gallant being insolvent had sold them to the plaintiff, an infant without pecuniary means or property, in consideration of his promise to pay certain debts which Gallant owed, to the value of the goods.

If this contract of sale was bona fide, there was a sufficient consideration in the contract of the plaintiff, notwithstanding his infancy and want of means, to support it. The contract of an infant is voidable, but not void. It is a precarious and uncertain consideration, the nature of which must be considered by the jury as bearing on the question of bonafides; but the law does not say it is so perfectly valueless as to be no consideration, and to make a sale founded on it necessarily fraudulent.

As to the objection that a sale of goods worth only $703 to a man of no means must necessarily be fraudulent as to the creditors of the vendor, because he thereby puts it in the power of the vendee to defeat a recovery of the price by setting up his personal property exemption, that cannot concern the defendant, because he has no claim against the plaintiff, not being one of the creditors whose (146) debts he assumed.

The only question in this case was as to the bona fides of the transaction, which was one entirely of fact. There was evidence from which the jury would have been justified in finding that the sale was fraudulent, or that it was not. We cannot revise their verdict. All the circumstances put in evidence seem to have been fairly submitted to the jury. The charge of the Judge was sufficiently clear, and we see no error in it. He directed them to inquire: "1. Was the sale by Gallant to Hislop abona fide transaction; or, was it a simple transaction to carry on the business in the name of a new man? If it was a sham trade, done with a view to fraudulently defeat the legitimate purposes declared at the time, viz.: the honest payment of his (Gallant's) debts, then it was void," etc.

His Honor was requested to hold, that a sale by an insolvent debtor, made with the intent to prefer one creditor to the others, was fraudulent and void, by force of the Bankrupt Act. This he declined to do. Whatever the law in that respect may be, such a preference is fraudulent and void only in case proceedings to have debtor adjudicated a bankrupt are commenced within six months afterwards, which it does not appear was done. In the absence of such a proceeding, a deed is not avoided merely by reason that it gives a preference, and an insolvent debtor may prefer if he does it bona fide and with no fraudulent intention. This has been often decided, and the law has not been altered by the Bankrupt Act, except upon the condition mentioned. See Lewis v. Sloan, 557, post. There was a verdict for the plaintiff, and defendant appealed.

It is to be regretted that we are under the necessity of giving a new trial in a case, in which the matter in controversy is so small in proportion to the costs.

(147) Gallant was examined as a witness for plaintiff, and "was permitted to give a history of the transaction by which he became indebted to the defendant after objection by defendant's counsel, when he went on to state that the note was given for money borrowed at fifteenper cent per annum, a usurious rate of interest," etc.

We are at a loss to conceive on what ground the Judge conceived this evidence competent. It could not avoid the defendant's judgment. It was not in any way pertinent or relevant to the issues on trial, and could only tend to raise a prejudice against the defendant by holding him out in the odious character of a usurer. It may be that it had little or no influence, but we cannot see that it had not any; and if a plaintiff will hazard his case, by pressing in evidence at the same time irrelevant and prejudicial to the defendant, he cannot complain of losing the benefit of his verdict, in consequence.

For this error the judgment is reversed.

PER CURIAM. Venire de novo.

Cited: S. v. Shields, 90 N.C. 695.