Adams v. Hitner

Per Curiam:

There was little in these cases save questions of fact which have been settled by the jury. Complaint is made, however, in the first assignment, of the rejection of the note of $4,000. It was offered as the basis of the judgment confessed to plaintiff Adams, and the obvious purpose was to show that Daniel O. Hitner was indebted to Adams in this amount at the time he, Hitner, transferred the mortgage of $10,000 to his son. There was nothing, however, to connect the note with the judgment. It was not the individual note of Hitner, but was made by D. O. & H. S. Hitner. In addition, there was no offer to follow it up by evidence that the judgment was confessed for this note. We think the offer was properly rejected.

The assignments from 2 to 6, inclusive, relate to the rejection and admission of testimony. After a careful consideration of them, we are unable to find error in either. A discussion of them in detail would not be profitable.

The remaining assignments allege error in the charge and the answers to points. While these assignments are numerous, they all point to the question of the alleged fraud in the transfer of the mortgage before referred to. The pivotal point in the case was the validity of the contract between Daniel O. Hitner and his son, who is the defendant, for the services of the latter. It was claimed by the plaintiffs that the compensation was extravagant, and an evidence of fraud. They asked the court to charge: “ If the jury believe that the alleged contract was unreasonable, and more than a fair compensation for these services of the defendant, then, being unexecuted until after the insolvency, it would be a fraud in law, and your verdict must be for the plaintiffs.” To which the learned judge replied: “ This is refused. It would be true, if the plaintiffs had been creditors of Daniel O. Hitner, Sr., at the time the contract was made, or if the contract had been made with intent to defraud subsequent creditors, such as the plaintiffs in this issue.” We are unable to see any error in this ruling. If, at the time Mr. Hitner made this arrangement with his son, he was possessed of large means, and believed himself solvent, it would not be a fraud in law, or in fact, if it was not done for the purpose of defrauding future creditors.

Complaint was also made that the defendant took property in excess of his claim to the extent of $2,814.90, and the court was asked to charge that the transaction was fraudulent. This request was refused. See eighteenth and nineteenth assignments. We cannot say it was error to refuse this instruction. It is true that in the settlement of May 27, 1887, the defendant took transfers of property amounting nominally to $23,750 in settlement of a claim of $20,985.10, but the court could not say, as a matter of law, that the transaction was fraudulent. A portion of the property consisted of real estate, tools, and ears, upon which a certain value was placed. Some of the property may not have been worth the valuation arbitrarily placed upon it, and whether there was any fraud in it was for the jury. In each case,

The judgment is affirmed. •