Peck v. Crouse

By the Court, Balcom, J.

The points touóhing the validity of the assignment) made on the defendants’ motion, for a nonsuit, have not been argued, or even presented, on the appeal here, and they need not be. discussed. The case presents the question, whether declarations of the assignors of the goods, made subsequent to the assignment and after they had parted with the possession of the assigned property, Were competent evidence for the defendants, when sued by the assignees, for taking and selling the goods under and by virtue of a judgment and execution against the assignors.

It was held, in Kentucky, in Turpin’s Administrators v. Marksberry, (3 J. J. Marsh. 622,) that declarations or admissions of an assignor, after making the assignment, are hot competent evidence against the assignee. And I believe the same rule has always been held in this state, except in cases where there was a common purpose shown in the assignor and assignee to defraud the creditors of the assignor. (See Waterberry v. Sturtevant, 18 Wend. 353; Cuyler v. McCartney, 33 Barb. 165; 21 id. 161.)

The declarations of the assignors, offered to be proved in this case, were not made until after the assignees had taken possession of the goods, under the assignment. The assignors then had ho control of the goods ; and they did not then have such an interest in the goods as entitled them to enter into any negotiation, or make any declaration or admission, respecting the same, that could affect the rights of the assignees, or creditors for whose benefit the assignees held the goods. Whatever the assignors then said was not res gestee, but mere heresay, and therefore not competent' evidence against the plaintiffs. ' (21 Barb. 161. 33 id. 165.) In Adams v. Davidson, (6 Selden, 309,) the assignor was in possession of the assigned property at the time he made the declarations that were received as evidence against his assignee;, which fact distinguishes that case from this.

The fact that one of the assignees, (the plaintiff Burghardt,) was present and probably heard the declarations or admissions of the assignors, made in their conversation with Taylor, without denying or repudiating what was sáid, does not make them binding upon the plaintiffs, or evidence against them. The declarations or admissions were in regard to the intentions of the assignors—the secret operations of their minds—and not in reference to any thing they had said to the plaintiffs. There can be no presumption that the plaintiffs knew whether the declarations or admissions were true or false. Burghardt, therefore, was not boutid to contradict them, and his silence did not render then! binding upon him, or evidence against him.

Again; it is very doubtful whether the assignors, in their conversation with Taylor, were not speaking of their intentions at the time the alleged admissions were made, and not as to what they were before or at the time the assignment was executed.

It is unnecessary to express an opinion on the question, whether any declarations of the assignors, before or at the time of making their assignment, were evidence against their assignee ; for no such declarations were offered to be proved by the defendants. But on this question, see the following cases: Paige v. Cagwin, 7 Hill, 361; Booth v. Swezey, 4 Selden, 276 ; Adams v. Davidson, 6 id. 309 ; Foster v. Beals, 21 N. Y. Rep. 247; Tousley v. Barry, 16 id. 497; Requa v. Requa, 22 id. 254; Rathbun v. Platner, 18 Barb. 272. The judgment in the last case was affirmed by the Court of Appeals, but the opinion of that court, in the case, has not been reported.’ (See Griffin v. Marquardt, 17 N. Y. Rep. 28.)

[Broome General Term, November 15, 1864.

The true construction of the rulings made after the evidence was closed, is that the judge decided that certain evidence in the case did not, as matter of law, authorize a holding that the assignment was invalid. What the assignors did before they made the assignment, in contemplation of making it, was evidence upon the question of their intention in making it, proper for the consideration of the jury. But their acts were not of such a character as to render the assignment void as matter of law. (See Wilson v. Forsyth, 24 Barb. 105.) The rule is well settled, that where the validity of a sale or assignment of goods depends upon whether it was made with intent to hinder, delay or defraud creditors, the judge is bound to submit the case to the jury. (See Vance v. Phillips, 6 Hill, 433.) It is expressly provided by statute, that the intent in such cases “ shall be deemed a question of fact and not of law.” (2 R. S. 137, § 4.)

The judge decided that he would leave the question, whether the assignment was fraudulent or not, to the jury, and the defendants declined to go to the jury on that question. But the case was submitted to the jury, and as the charge is not set out in the bill of exceptions, the presumption is, it was satisfactory to the defendants. It does not appear that they excepted to any portion of it.

' My conclusion is, that no error was committed on the trial prejudicial to the defendants, and that the judgment in the action should be affirmed, with costs.

So decided.

Campbell, Parker, Mason and Palcom, Justices.]