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ion that the action of the court in withdrawing the case from the jury was error. There are cases where the court may and should instruct the jury in absolute form, and direct a verdict in favor of one of the parties. This may be done where a party fails to show something essential to the maintenance of the action or defense, and also where there are no disputed facts for the jury to pass upon. Some of the courts have gone to the extent contended for by the defendant, and held that the court might direct a verdict in any case where a contrary verdict would be set aside as against the weight of the evidence. To this we cannot agree. Neither is it in accord with the decisions of this court, where it has been held in effect that if the evidence fairly tends to establish the plaintiff's cause of action, or the defense of the defendant, the court cannot withdraw the case from the jury or direct a verdict, but must leave the weight and credit of the testimony with the jury. A motion to direct a verdict in favor of the defendant is equivalent to a demurrer to the plaintiff's evidence, about which it has been said that “it cannot, therefore, be used to deprive a party of his right to have questions of fact determined by a jury. It matters not, therefore, whether the testimony which a party offers to prove a fact be absolutely conclusive, or only very weak and of uncertain import; he has the right to have that testimony considered, and its value and sufficiency determined, by a jury. The court may sustain a demurrer to evidence only under the circumstances which will permit it, after all the evidence has been presented on both sides, to withdraw the consideration of the case from the jury and decide it itself.” Kansts Pac. IRy. Co. v. Couse, 17 Kan. 571. In another case it is said that before a case can be withdrawn from a jury the court must be able to say “that, admitting all the evidence to be true that the plaintiff has introduced, and that none of the evidence conflicting there with is true, the plaintiff has utterly failed to make out his case.” Brown v. Atchison, T. & S. F. R. Co., 31 Kan. 1; S. C. 1 Pac. Rep. 605. See, also, Jansen v. City of Atchison, 16 Kan. 358; Waterson v. Rogers, 21 Kan. 529; St. Joseph & D. C. R. Co. v. Dryden, 17 Kan. 278. In this case it is clear that the testimony, though it may be weak and unsatisfactory, when considered in connection with the testimony of the defendant, and though it might have fallen far short of satisfying the minds of the jury, to say the least, fairly tended to establish the theory of facts assumed by the plaintiff. Viewed in the light most favorable to the plaintiff, with all the facts reasonably and legally inferable therefrom, the evidence offered upon the part of plaintiff tended to show that the untruthful answers respecting the flues were wrongfully written by the agent of the defendant, without the dic'ation or knowledge of the plaintiff, after he had given truthful answers to the questions asked. In his testimony he says he was not asked of what material the chimneys were made, nor whether the stove-pipes passed through the roof; neither was he asked anything about how the flues were built through the roof; that the insurance contract was made in Forbriger's office, and that no papers were read to him at that time. Forbriger asked questions in regard to the house; and if there were good flues, and he told him that there were; but that the agent did not ask him whether the chimneys were made of brick, stone, or tin. He asked the agent how much the insurance would cost for three years, and when he was told he paid the amount asked, and then the agent began writing and asking him questions, which he answered correctly, when the agent said, “All right, —you are insured now;” that the agent never read or explained the application to him; and that the false answers written by the agent in the application were never given by him. It is true, the testimony of the plaintiff regarding the flues is not very satisfactory, and the jury, if it had been submitted to them with appropriate instructions, might have found in favor of the defendant, as did the court; but when it is considered in connection with the admitted facts, it made a case upon which the plaintiff is entitled to the judgment of the jury.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
(All the justices concurring.)
(34 Kan. 142)
Filed October 9, 1885.
1. ATTACHMENT—FRAUDULENT DISPOSITION OF PROPERTY—EVIDENCE. Where an order of attachment has been issued upon an affidavit charging that the defendant had assigned and disposed of his property with a fraudulent intent, and the defendant moves to discharge the attachment, and files a coun ter-affidavit positively denying the grounds for attachment laid in the plaintiff’s affidavit, the burden is upon the plaintiff to sustain the allegations of fraud which he has made, and if he fails to do so by a preponderance of testimony the attachment should be discharged. 2. SAME—VOLUNTARY Assign MENT. Upon the trial of the motion to discharge the attachment the only testimony offered was a voluntary assignment executed by the defendant for the benefit of his creditors. To uphold the attachment in such a case the deed of assignment must clearly show upon its face an actual personal intent on the part of the defendant to hinder, delay, or defraud his creditors. If the instrument has been executed in good faith, and solely for the benefit of the creditors, the mere fact that it may be defectively executed, or that it may contain provisions not authorized by the statute, is not alone sufficient to sustain the attachment. 3. SAME-FRAUD NOT PRESUMED. Fraud is not to be presumed from the provisions of an assignment, where it will admit of an interpretation favorable to honesty and good faith. ] HoRTON, C. J., dissenting to the second subdivision as applied to the facts of this case.
Error from Osage county.
This action was brought in the district court of Osage county on August 1, 1884, by McPike and Fox against E. D. Atwell, to recover the sum of $428.88 for goods sold and delivered. On the same day an affidavit and bond for attachment against the property of the defendant was filed by the plaintiff. Among the grounds for attachment alleged in the affidavit was “that the defendant had assigned, removed, and disposed of his property, or a part thereof, with intent to defraud, hinder, and delay his creditors.” The writ of attachment was accordingly issued, and levied on a stock of drugs, oils, and medicines of the defendant, in the city of Lyndon. On August 4, 1884, a motion was made by the defendant to dissolve the attachment upon the following grounds: “First, that the grounds for said attachment laid in the affidavit for attachment are, and were at the date of the issuance of said writ, untrue; second, that the grounds on which said attachment and writ were issued are insufficient in law; third, that the attachment proceedings were defective and illegal.” To support his motion the defendant filed his affidavit denying generally the grounds for attachment alleged in the plaintiff's affidavit. The plaintiffs, to maintain the issue on their part, introduced a deed of assignment for the benefit of creditors made by the defendant on June 19, 1884, a copy of which is as follows:
“State of Kansas, County of Osage—ss.: This indenture, made this nineteenth day of June, A. D. 1884, between E. D. Atwell, of Lyndon, county of Osage, state of Kansas, party of the first part, and H. D. Danhauer, of Said town, county, and state, party of the second part, witnesseth: “Whereas, the said E. D. Atwell is largely and justly indebted in Sundry considerable sums of money to various persons; and whereas, the said E. D. Atwell has been unable, and is now unable, to discharge said debts, or make any satisfactory settlement of the same, with punctuality or in full, or a part thereof as a full settlement thereof, and being desirous of securing to all his creditors the possession of whatever property and effects he is seized of, and to prevent an undue sacrifice of the same: “Now, therefore, this indenture witnesseth that the said E. D. Atwell, party of the first part, in consideration of the premises hereinafter recited, and of one dollar to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, has granted, bargained, and sold, assigned, released, and transferred, and set over unto the said party of the Second part, and by these presents does grant, bargain, sell, transfer, and set over unto the said party of the second part, in trust and for the benefit of all his creditors, and in proportion to their respective claims, all and singular, the following personal property, to-wit, my entire stock of drugs, consisting of drugs, notions, paints, oils, scales, prescription case, bottles, and all shelf furniture, safe, and all patent medicines not sold on commission, stationery, blank books, store-book, accounts, claims, due-bills, demands, choses in action, notes, judgments, and all other evidences of debt whatsoever, belonging to said party of the first part—all being situated and contained in a two-story frame building situated on lot No. six, (6.) in block No. twenty-one, (21) in the city of Lyndon, county of Osage, and state of Kansas,—to have and to hold the same unto the party of the second part in trust, and for the benefit of the creditors of said party of the first part, and for the following uses, intents, and purposes, to-wit: that the said party of the second part shall at once, or as soon as practicable, take possession of all and singular the personal property, effects, rights in action hereby assigned, and sell and dispose of the same, either at public or private sale, as he in his good judgment may deem advisable, and for the best interest of all the creditors of said party of the first part, converting the same into money, and also to collect, all and singular, the debts, due-bills, notes, demands, choses in action, judgments, and demands, or so much thereof as may prove collectible, and thereupon execute and deliver all necessary acquittances and discharges, and by and with the proceeds arising from such sale and collections, (1) that said party of the second part shall first pay and discharge all reasonable and just expenses and charges and disbursements of carrying into effect this assignment, and all other charges that may become necessary for the purpose aforesaid; (2) that said party of the second part shall proceed to pay, out of the residue remaining after paying the expenses and charges after carrying this assignment into effect, the debts of said party of the first part, pro rata and in proportion to their respective claims, whether due or to become due, first paying all secured Creditors in full, as is shown and set out in Schedule A, hereto attached, and all unsecured and unpreferred creditors pro rata in proportion to their respective claims—the said party of the first part reserving the right to correct in detail the said Schedule A, should the same, on close examination of proofs and books, be found to be incorrectly stated in amount or otherwise: (3) the rest and residue remaining, if any there shall be, after the expenses of sale and collection are fully paid, and all debts and liabilities have been paid and settled as aforesaid, the balance shall be paid to said E. D. Atwell, party of the first part; and for the better execution of this instrument, and trusts, and duties hereby conferred, the said party of the first part does hereby nominate and appoint the said party of the second part his true and lawful attorney, irrevocable, with full power and authority to do and perform all acts, mat. ters, and things which can or may be necessary in the premises, as fully and completely as the said party of the first part might or could have or do were these presents not executed, and attorney, one or more, under him to make, nominate, and appoint, as he may deem necessary, with full power of substitution and revocation, hereby satisfying and approving all and everything which my said attorney shall do or cause to be done in the premises. “In witness whereof, the said E. D. Atwell, party of the first part, has hereunto set his hand and seal this nineteenth day of June, A. D. 1884. “E. D. ATWELL.” “State of Kansas, County of Osage——ss. : Personally appeared before me, clerk of the district court of county and state aforesaid. E. D. Atwell, who acknowledged the execution of the annexed deed of assigment, for the purpose herein specified, to be his own voluntary act and deed, this nineteenth day of June, A. D. 1884. [Seal.] “W. A. COTTERMAN, Clerk of the District Court.” “I hereby accept the trust conferred on me by virtue of the foregoing deed of assignment, and assume the discharge of the duties growing out of the same, this nineteenth day of June, A. D. 1884. D. H. DANHAUER.” “I do solemnly swear that I will honestly and faithfully perform the duties enjoined upon me in the above and foregoing deed of assignment, as assignee of E. D. Atwell, to the best of my ability, so help me God. “D. H. DANHAUER.” “Subscribed and sworn to before me this nineteenth day of June, 1884. |Seal.] “W. A. COTTERMAN, Clerk District Court.”
The plaintiffs also offered in evidence the original inventory of all the property, effects, and things assigned by the defendant to D. H. Danhauer, which was filed in the office of the clerk of the district court by said defendant at the time the assignment was made; also the schedule of liabilities of the defendant, filed in the district court on the day the deed of assignment was made, and also a chattel mortgage executed and delivered by the defendant to one O.C. Deaver on May 7, 1884, and which was duly filed for record in the office of the register of deeds of Osage county. No other evidence was offered upon the motion to dissolve the attachment, but it was admitted that at a meeting of the creditors of the defendant, held in the office of the clerk of the district court on July 10, 1884, pursuant to a notice given by the clerk to the creditors of the defendant, as shown in his schedule of liabilities, that O. C. Deaver was duly and properly chosen assignee by the creditors. It was further admitted that the plaintiffs took no part in that meeting in person or by attorney; but the further admission was made that the plaintiffs had notice of the deed of assignment before this action was brought, by and through their attorney herein, who inspected and read the same. After hearing the evidence, the court, on the fourth day of August, 1884, sustained the motion of the defendant to dissolve the attachment, and discharged the same. This ruling was excepted to by the plaintiffs, who bring the case here for review.
Smith & Solomon, for plaintiffs in error.
Wm. Thomson, S. B. Bradford, and E. A. Austin, for defendant in GFI’Or.
JoHNSTON, J. In the affidavit filed by plaintiffs for the purpose of obtaining an order of attachment several grounds were stated, but in the trial of the motion to dissolve the attachment the only one apparently relied upon was that the defendant “had assigned, removed, and disposed of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors.” When the defendant moved to discharge the attachment, he filed a counter-affidavit denying the charges of fraud made by the plaintiffs. The burden was then upon the plaintiffs to sustain the allegations of fraud which they had made, and if they failed to do so by a preponderance of testimony the court rightfully discharged the attachment. As mentioned in the foregoing statement, the only proof offered to sustain the charge was the deed of assignment made by the defendant, together with the accompanying papers filed therewith and referred to therein. Nothing was offered tending to show bad faith on the part of the defendant, nor was there any attempt to prove that the assignment was made by the defendant for the purpose of defrauding, hindering, or delaying his creditors, unless such intent is shown upon the face of the conveyance. It is claimed to be fraudulent and void by reason of defective execution, and because it contains provisions not in accordance with the statute relating to assignment. It should be remembered, however, that the validity of the assignment was not the question before the court, but it was rather whether such assignment was executed in bad faith. To sustain the charge made and uphold the attachment there must have been an actual personal intent to defraud, hinder, or delay the creditors of the assignor. The assignment may be informal, and may contain provisions which are not in compliance with the statute, and which would render it invalid; but if it was made in