Gillet v. Phelps , 12 Wis. 392 ( 1860 )

By the Court,

PAINE, J.

We think that the judgment in this case must be reversed, for the reason that the instructions given by the court to the jury were calculated to mislead them, and might have prejudiced the rights of the plaintiff. The question was, whether the sale from George W. Gillet to the plaintiff was fraudulent. The first instruction appearing in the bill of exceptions, is as follows: “ That if they believed that G. W. Gillet made the representations to Ogden, sworn to by him, on the 29th and 31st days of October, 1853, and that the plaintiff was present and heard the same, and sanctioned the same, or did not dissent therefrom, and that in fact the sale to the plaintiff had been then negotiated, and that an invoice was being taken and the deed of the lots made out the same evening that Ogden last called, it is evidence of fraudulent intent on the part of the plaintiff.'1'' Now we think this language is not only capable of being so construed, but would be commonly understood as meaning, not merely that the facts mentioned would be competent evidence, proper to be considered in determining the question of fraud, but would be full evidence of the fraudulent intent of the plaintiff, and such as would require them kpfrnd it as a fact. Most juries would so understand it. If the judge tells them that certain facts are evidence of another, they would understand it to mean sufficient evidence, and not merely material and tending to establish the other. Lawyers, acquainted with the rules of evidence and the different functions of the court and jury, might infer only the latter meaning. But we think a jury would naturally infer the former, and that for this reason the instruction may have prejudiced the rights of the plaintiff. For the effect of this evidence was for the jury and not the court to determine, and it should have been submitted to them in such a manner as left them free to determine it, and not in language implying that they were bound to give it a particular effect.

The judge gave also the following instruction, which was excepted to: “ That the terms and conditions of the sale were directly in part calculated to hinder and delay creditors, and the law presumes a man intends that which must naturally result from his acts; and if the jury are satisfied that at the time of said sale, the plaintiff had knowledge of the insolvency of George W., then he was a fraudulent purchaser of said goods, as against the creditors who attached said goods.”

We think this instruction is also liable to objection. It assumes things which should have been left to the jury, and only in connection with which assumption could the instruction be sustained. For certainly it will not do to say that the law presumes that every man who sells on credit and takes notes, does so with intent to hinder and delay his creditors. If the property sold is all that he has, or if he is in- , solvent, then such terms of sale may indicate that intent, and they should be submitted to the jury in connection with the evidence upon the other points, as all to be considered in determining upon the intent of the parties.

There is another point of view in which the instruction may have prejudiced the plaintiff. The terms of the sale are agreed on by both the parties; it is the act of both parties. When the court, therefore, told the jury that the direct effect of it was in part to hinder and delay creditors, and that the law presumed that a man intended that which naturally resulted from his acts, they might apply it as well to the purchaser as to the vendor, and suppose that the law presumed that the purchaser intended to delay the vendor’s creditors, because such was the effect of the terms of sale. It is obvious, however, that this principle could apply only to one having knowledge of the condition of the vendor’s indebtedness. He himself must of course know it, and if he made a sale upon such terms as must hinder his creditors, he may be presumed to have had that intent. But it would not do to presume that the purchaser had that intent, because such was the result of his purchase, unless he knew that the vendor was so indebted as to produce such a result. It may be that the court intended this general language to apply only to the question of the vendor’s intent, and that it was qrralified with respect to the plaintiff, by the subsequent statement that “ if he knew of the insolvency of George W. then he was a fraudulent purchaser,” &c. If so, it would not be liable to this objection; but we think the distinction between the intent of the vendor and that of the purchaser should be more clearly marked in a case of this kind; for whatever may have been the facts in this case, it is undoubtedly true that the rights of purchasers frequently depend entirely upon the observance of that distinction.

We have no doubt of the admissibility of the acts and statements of George W. Gillet, which were offered for the purpose of showing his fraudulent intention. Whenever the intent of any man, in doing a particular act, is in question, his statements and acts with reference to it, at the time, and certainly those preceding the time, are original evidence for tbe purpose of showing his intent. The authorities by the defendant in error, fully establish this proposition. And it results from the necessity of the ease, as there is no other mode of proving intention. It stands up.on the same grounds with the question of the bodily or mental 'feelings or sanity of any person. ' Grreenleaf’s Ev., vol. 1, §§ 102,110.

Nor do we think there was any error in admitting the evidence of Eenton as to the statements of the plaintiff in New York, in relation to the previous representations of Greorge W. Grillet, at the time he purchased the goods. The counsel for the plaintiff in error urged that those statements, made long after the sale, could not possibly have induced the sale. That is very true, and would have been a good answer to an action against the plaintiff for falsely representing Greorge W. to be responsible. Yet, although these statements could not have induced the sale to Greorge W., yet if that sale was induced by the same and other false representations, made by Greorge W. himself, for the purpose of obtaining the goods and then defrauding his creditors, and these subsequent statements by the plaintiff were sufficient to satisfy the jury that he was aware of and participated in the original purpose of George W., that would strongly tend to impeach the good faith of the sale from George W. to him, and go to show that it was simply an execution of the original design. The statements were not offered'to show that they induced the sale to George W., but to show, in connection with other evidence, a fraudulent design on his part in procuring the goods,-which was aided by the* plain tiff, as circumstances from which the jury might infer-a continuation of the fraudulent intent, and knowledge of and participation in it by the plaintiff. We have no doubt it was competent evidence for this purpose.

Nor do we think there was error in rejecting the evidence of the plaintiff’s offers to transfer the property to the defendants, if they would relieve him from his liabilities for George W. Gillet for the goods. Yfe should doubt the tendency of such an offer, even if shown, to establish the good faith o the sale. Eor if it had been made in good faith, and the plaintiff had paid divers other valuable considerations in addition to his “ liabilities for Greorge W. for the goods,” it is not according to the ordinary action of human nature, that he should transfer the whole stock, merely in consideration of being relieved from those liabilities. But such an offer seems to be more in the nature of a wager of a man’s present good faith, than as having any real bearing upon the question, whether he previously had knowledge of a fraudulent intent on the part of his vendor.

But we are inclined to think that the evidence of the statements of Phelps and Vedder, with respect to the fairness of the sale, were admissible. It was said that these statements were made immediately after the transaction, and when they were ignorant of the evidences of fraud, and that they may have assented to the fairness of the sale from motives of policy, &c. This may all be very true, and might be urged before the jury in such manner as to destroy the effect of the evidence. But it goes to its effect, not to its admissibility. The admission that a sale was fair is rather the admission of a general conclusion, than of any distinct fact. Yet we are unable to take it out of the general rule which admits the statements of parties with reference to the transactions in question between them. Of course their admissions would not affect the rights of the other defendants, but would be evidence only as against ihemselres.

There was some evidence tending to show that the defendants were acting in concert in attaching the goods. If that was so, which was for the jury to say, we 'think they were jointly liable, if liable at all, although their debts were separate.

The judgment is reversed, with costs, and a new trial awarded.