Bartels v. Harris , 4 Me. 146 ( 1826 )


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  • Weston J.

    at the ensuing June term in Kennebec, delivered the opinion of the Court as follows.

    The plaintiff in this action having a book account against John B. Cross for seven hundred and fifty dollars, and having also made himself liable as indorser and surety for said Cross for upwards of seven thousand dollars, took a transfer of his stock in trade,amounting to four thousand, four hundred and sixty six dollars. There was executed at the time of the transfer a certain indenture, by which the plaintiff covenanted to sell the goods transferred to him upon the best terms in his power, and, after deducting the necessary expenses, to apply the proceeds to the payment of his own demand, and of such sums as he had become liable for and to pay over the surplus, if any should remain, to the said Cross. Another instrument executed at the same time, was a particular schedule of the said goods, which was referred to in the indenture. Both papers were attested by the same witnesses. The schedule ivas in the form of a common bill of parcels ; closing with the words “ received payment,” and signed by Cross. There was no reference in the schedule to the indenture. The judge, who *151presided at the trial, instructed the jury that the indenture and the schedule referred to therein, constituted but one instrument, and that, notwithstanding the form of the schedule, and the words received payment,” which were explained in the indenture, the consideration for the transfer being there fully set forth, it was to be deemed in the nature of a mortgage of the property, and not an absolute sale of it.

    This construction is resisted upon the ground that as the schedule, or bill of parcels, is itself evidence of an absolute sale or transfer, and has no reference to the indenture, the sale must be regarded as absolute and therefore within the principle of the case of Gorham v. Herrick, cited in the argument, liable to be defeated by subsequently attaching creditors. The form of the schedule, connected with other facts of a suspicious aspect, unexplained, might be a circumstance indicative of fraud; but being expressly referred to in the indenture, and its extent and meaning there specially stated and limited, we must consider the schedule as qualified by the indenture, and gather the intention of the parties from both these papers; and viewing them together the meaning is too plain to be misunderstood. The evidence of fraud, so far as it may arise from the form of the papers, is in a great measure repelled by the fact that they were both attested by the same witnesses, three in number, by a resort to either of whom, the existence of the indenture could have been ascertained ; although it is not noticed in the schedule.

    The plaintiff, being the creditor and surety of Cross to a large amount, had a right to take measures for his security. For his own debt he was at liberty to have taken an absolute transfer, or a qualified one. The consideration of his liabilities, he having then made no actual payments on that account, was sufficient to justify a qualified transfer of the goods, for the purposes of indemnily, which is the ground distinctly stated in the indenture; unless the object of it was to defeat or to delay other creditors. The evidence, tending to shew this, was submitted to the jury, and they were instructed to consider the transfer as invalid against the creditors of Cross, if they were satisfied, it was made, not to secure the plaintiff, but to defeat or delay them. But that if the *152plaintiff’s object was to defeat other creditors, in order to secure himself, he might lawfully do this, having a just right to prefer himself to óthers, and if they were defeated or delayed, this consequence could have no tendency to vitiate the transaction. The jury found for the plaintiff; and we do not perceive any ground upon which the verdict can be disturbed. The amount of the goods was insufficient for the plaintiff’s indemnity. The plaintiff, being deeply involved as the surety of Cross, and believing him to be insolvent, was well justified in resorting to all lawful means for his indemnity. Under these circumstances, his own security must necessarily have been the motive, which quickened his diligence, and viewing the nature of the transaction, as detailed in both the papers, we cannot regard the conclusion, to which the jury have arrived, as unsupported by the evidence.

    It has been urged that, upon the facts proved, the judge should have distinctly instructed the jury, that this was a clear case of legal fraud. In the case of Estwick v. Caillaud, 5 D. & E. 420, cited in the argument, the court say that fraud is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and of fact; and that if a decision is to be had on the fape of the deed, that is a question of fraud in point oflaw. The law will be the same in regard to any other instrument in writing, not under seal, where the evidence of fraud appears in the instrument itself. There were strong circumstances in the case cited, from which to infer legal fraud ; which was however repelled by explanatory evidence. As the deed itself furnished no proof of fraud, the question was left at large to the jury, whether it was a fair transaction between the parties without meaning to defraud other creditors ; and a verdict being-returned for the plaintiff the court refused to set it aside.

    In the case before us, no evidence of fraud arises in our opinion, from the papers taken together. The course pursued by the plaintiff appears to have been somewhat indiscreet; and in some parts of it, he manifests a dispositi^i to conceal his operations from the observation of Cross’s other creditors ; but this seems to have been done rather with a view to secure himself from loss, than to fayor Cross at their expense; his claims are as meritorious, *153and entitled to as much favor, when limited to the payment of his own debt, and to indemnity for the sums for which he stood responsible, as those of other creditors. The declarations made, and circumstances relied upon, as evidence of fraud, being susceptible of explanation, and capable of being understood in a sense which would leave the plaintiff free from the imputation of being influenced by any intention to defeat other creditors, except what must necessarily arise from the measures he had a right to pursue to secure himself, it presented a case falling within the province of the jury ; and was in our opinion submitted to them with proper instructions from the presiding judge.

    The case finds that there was no surplus; but if there had been, it was accessible to creditors, through the .medium of the trustee process. There is no foundation for the position, that by reason of this possible surplus, Cross was tenant in common with the plaintiff; and that the latter could not therefore be entitled to maintain replevin. The interest of the mortgagee, either of real or personal property, is distinct, several, and paramount, and entitles him to possession in all cases, where the thing pledged is a personal chattel ; and also, where it consists of real estate ; unless it is otherwise expressly agreed in the deed.

    The motion to grant a new trial is overruled and there must be

    Judgment on the verdict.

Document Info

Citation Numbers: 4 Me. 146

Judges: Weston

Filed Date: 5/15/1826

Precedential Status: Precedential

Modified Date: 9/24/2021