Joseph Schoeneman & Co. v. Weill , 1896 Pa. Super. LEXIS 114 ( 1896 )

Opinion by

Orlady, J.

(after stating the facts as above) :

There was no controversy between husband and wife as to these goods. He did not make claim of title to them. The dispute was between his creditors as to whether he ever had title, and the evidence was properly received under authority of Norbeck v. Davis, 157 Pa. 403.

Louis P. Levy was not called as a witness, and to exclude proof of the representations made at the time the goods were secured would open wide the door to successful fraud, and place in the hands of the fraudulently disposed the power of securing property through conspiracy with his wife, and at the. same time prevent any investigation of the fraud. This is not the law and is contrary to its policy.

He was the actor in the alleged fraud. It was competent to show just what he did, and its effect in securing the property. Any other rule would enable a scamp to transfer the fraudulently secured property to his wife through the medium of a confessed judgment and friendly process, and withdraw it from reach of an honest creditor.

She had control of her execution and in seeking to enforce it against property claimed by a stranger to the writ, must maintain her husband’s title to the goods. As execution creditor she can have no higher title to the goods than her husband at the time of levy. If he had no title, she had no right to sell.

The court properly limited the inquiry of the jury to this one question: “ These judgments are not attacked at all in any way. It is not necessary that they should be. They may be fraudulent for anything we know or care in this suit. The simple question here is whether the title is in Schoeneman & Co., or in Levy.”

The ninth assignment, relating to the jury being sworn and going to trial, with Joseph L. Weill and Jennie Levy as defendants, “ there being two defendants, one of them being the wife of a man who may be called as a witness,” is not to be seriously considered, as the suggested danger did not arise. Levy Avas not called as a witness, and it could not make any change in the case in the view taken as to the character of proof. Further, the issue was so framed without objection.

The tenth assignment is to the answer to plaintiff’s point submitted : “ If the jury believe from the evidence that when Levy made the written statement of September 5, 1895, on which he procured the goods, he was indebted to his wife, to Weill, or to any one else, his answer was false and the goods were obtained by fraud, and the verdict should be for the plaintiff.” The ansAver to which was, “That, we say, would be true. We ansAver that in the affirmative. If the jury are satisfied from the whole eA'idence that these statements, or any of them, with reference to his indebtedness were false, then he obtained these goods by fraud and false representations.”

In the investigation of alleged fraudulent transactions, a wide door is opened to the admission of evidence, and under the facts in this case it was proper to submit the whole question to the jury. The credibility of the witness Avas clearly for the jury.

The eleventh and twelfth assignments relate to the charge of the court in submitting to the jury the question of fraud. There is certainly some evidence tending to prove fraud. The jury is the proper tribunal to weigh it, and determine what it proves: Landis v. Neff, 9 Atl. Rep. 926. This question was fairly submitted to the jury. We discover no error in the admission of evidence, nor in the charge. The judgment is affirmed.