Dietus v. Fuss

Eccleston, J.,

delivered the opinion of this court.

The first proposition in the plaintiff’s first prayer, relied upon as furnishing evidence, in connection with other matters, to justify the inference, that the bill of sale alluded to was made to hinder and delay creditors, and therefore void, is simply, that when Gotlieb Dietus executed the instrument he was indebted to several persons, who remained unpaid up to the time of trial. There is no question submitted to the jury as to the amount of his indebtedness or the extent of his means, nothing as to whether he was in embarrassed or insolvent circumstances further than what might be conjectured from the fact of his having several creditors whose claims were not subsequently paid. The language of the instruction would have been complied with if the jury had believed Gotlieb Dietus’ creditors were three in number, to each of whom he owed five dollars, whilst he was worth forty thousand dollars. A prayer containing a proposition so well calculated to mislead a jury-should not. have been granted.

The second prayer on behalf of the plaintiff presents, not only the facts, but also the inference to be drawn from them, as set forth in the first; and if that, is erroneous this likewise must be so.

Before expressing an opinion in reference to the plaintiff’s *158 third prayer it is proper to notice somfe of the principles relating to the subject of conversion, for the action of trover cannot be maintained without a conversion. It may be either direct or constructive, and therefore may be proved directly or by inference. When the plaintiff fails in proving an actual conversion it will be necessary for him to give evidence of a demand and refusal having been made at a time when the defendant had the power to give up the goods. A demand and refusal are only evidence of a prior conversion, which may be explained and rebutted by evidence to the contrary. 2 Greenl. on Ev., secs.. 642, 644. Edwards vs. Hooper, 11 Mees. & Wels., 363.

In Nixon vs. Jenkins, 2 H. Bl. Rep., 135, goods were sold to the defendant by a party in contemplation of insolvency, and with a design of defeating the claims of his creditors. He committed an act of bankruptcy shortly after the' sale, and an action of trover was instituted by his assignees to recover the value of the goods, in which they gave no proof of a demand and refusal. On behalf of the plaintiff it was insisted, that because the sale was fraudulent no demand and refusal need be proved, that being only necessary where the possession was originally lawful, and then the possession was wrongful.

But it was held by the court, “ That a demand and refusal were necessary to maintain the action. When the sale was made the parties were competent to contract; there was no unlawful taking of the goods, though the transaction was liable to be impeached by the assignees. They might either affirm or disaffirm the contract, and if they thought proper to dis-affirm it they ought to have demanded the goods, a refusal to deliver which would have been evidence of a conversion.” And in Browne on Actions at Law, 440; the author says, “ If a trader, in contemplation -of bankruptcy, make a collusive sale or fraudulent preference, the assignees cannot maintain trover without a demand and refusal.” In support of which position he refers to 2 H. Bl. Rep., 135; 9 B. & C., 764; and 4 M. & R., 547. See also Stewart vs. Spedden, 5 Md. R., 449, as to when a demand is necessaiy.

Although the principle stated by Brown, and recognized in *159 the authorities cited by him be true, yet if a vendee, under such a sale, disposes of the property by sale or otherwise, after his vendor has made application for the benefit of the insolvent laws, or if prior to the application, whilst the goods were remaining in the possession of the original vendor, he may have made a second sale of them, and subsequently to the petition the first vendee adopts or sanctions that sale, such conduct will amount to a conversion without a demand and refusal, so far as relates to the sale of the goods so adopted or sanctioned. The authorities referred to by the appellee’s counsel show this view of the subject to be correct. And surely it would not bo promoting the ends of justice to hold, that without a demand and refusal the trustee of an insolvent could not maintain an action of trover against the first vendee under such circumstances, because a demand aud refusal, after he had parled with all authority and control over the property, would not make him responsible in trover, as he would have no power to comply with the demand when made.

The third prayer asked the court to instruct the jury, if they should find that when the suit was instituted the plaintiff had been appointed permanent trustee of Gotlieb Dietus, and had given bond as such; and if they should also find, that the bill of sale given in evidence was not made upon the consideration therein stated, and was'not made bona fide, that then the said bill of sale was clearly and utterly void, and the plaintiff was entitled to recover what the jury might find to be the value of the property therein mentioned. If we are to consider this prayer as having any reference whatever to the subject of conversion, it must rest exclusively upon the hypothesis, that the bill of sale was fraudulent and void, and that the simple execution of it operated as a sufficient conversion to sustain the suit; without requiring that the jury should find anything in reference to the possession of the goods, whether they had been resold or in any way disposed of, or whether there had been a demand and refusal. The bill of sale was made before the grantor filed his petition as ail insolvent, and even admitting it was fraudulent, and the jury might have believed it to be so, still that alone, unsupported by any other fact in regard *160 to an actual conversion, or to a demand and refusal, would not justify a verdict in trover in favor of the plaintiff. The prayer was therefore erroneous .-

The first prayer of the defendant was properly refused. The proposition contained in it is, that the plaintiff was not entitled to recover unless the jury believed the bill of sale had been made by the grantor with a view or intent of taking the benefit of the insolvent laws; and unless they should likewise believe the defendant had actual notice that the grantor Was insolvent at the time of executing the bill of sale, and of the intention of the grantor to apply for the benefit of the insolvent laws. This Was erroneous, because it .did not follow that if the bill of sale was not void under our insolvent laws it might not be successfully assailed under the statute of Elizabeth, in the opinion and belief of the jury.

Our reasons for thinking the court did right in refusing the defendant’s third prayer will be found sufficient, we think, to show there was no error in not granting his second prayer.

The position taken in the defendant’s third prayer is, that if the jury believed the defendant’s possession of the chattels in question, at any time prior to Gotlieb Dietus’ application for the benefit of the insolvent laws, was with the consent of Gotlieb Dietus; and should also believe that such possession ceased by the act and choice of Gotlieb prior to his application as an insolvent, and that at the time of the plaintiff’s alleged demand of. the chattels the defendant had not possession of them, the verdict should then be for the defendant.

Although the jury might have believed all the matters to be true which were submitted for their consideration; and although the defendant’s possession may have ceased by the act and choice of Gotlieb prior to his petition; nevertheless if the jury believed the bill of sale was fraudulent, and that after the petition the sale and delivery of possession made prior thereto by Gotlieb were adopted or sanctioned by the defendant, such acts amounted to a conversion, which rendered a demand and refusal .unnecessary. In reference to the circumstances just mentioned, which, if believed by the jury to be true, would constitute a conversion, there is some evidence, but it is not *161 our province to say whether the evidence is or is not sufficient to prove them.

Admitting the truth of all the circumstances presented in the prayer, on which the defendant based his right to a verdict, still there is evidence tending to prove other circumstances, which if found by the jury would entitle the plaintiff to a verdict. The prayer was therefore properly refused by the court.

The defendant’s fourth prayer was erroneous for the reasons assigned in regard to the third.

In his fifth prayer the defendant asked an instruction to the jury, that the plaintiff was not entitled to recover unless they believed that the defendant had possession of or exercised control over the goods at some time since the tenth day of February 1851. In support of the position here taken, the defendant says, the plaintiff avers in his declaration, that the property in the goods was in Gotlieb Dietus on the 11th of February 1851, when the defendant converted them to his own use, and this he assumes must be proved, because a prior conversion is not sufficient. As to the averment in the nar, in regard to the date of the conversion, he is mistaken; the allegation being that the defendant converted the goods on the 26th day of June 1851; but if he were correct in his facts still his prayer would not be so. The particular day named in a nar, either in reference to the possession of the party whose goods have been converted, or in relation to the conversion, is not material, as may be seen by reference to two forms of nars, in trover, by assignees of bankrupts, to be found in 1 Saund. Pl. & Evi., 205, 206.

The defendant’s counsel relied with much confidence upon the case of Edwards vs. Hooper as sustaining their views; but that decision did not turn upon the materiality of any particular day named in the nar. The statement of the assignees’ right of property instead of merely stating their right of action rendered it necessary to prove that the conversion was after the plaintiffs became assignees. But there was no discussion, either by counsel or judges, as to the materiality of the precise days stated in the nar. This decision does not contradict what *162 is said by Saunders, nor do the other cases cited on the subject.

The statement in the nar, that on the 11th of February 1851, Gotlieb had possession of the goods, and on the same day they came to the possession of the defendant, by finding, we consider immaterial averments in regard to time, and that the court were right in refusing to grant the fifth prayer of the defendant.

According to the record it appears the plaintiff offered three prayers, which were all granted; then the defend ant submitted five prayers, which were all refused. The language of the record at this point, (after having set forth the prayers,) is, 11 And the court rejected all the said prayers of the said defendant, and instructed the jury, that the sole question for them was, as to the validity of the bill of sale from Gotlieb Dietus to the defendant; that if they should find the said bill of sale not. to have been made bom.fide the plaintiff was entitled to recover what they should find to be the value of the property, but if they should find that the bill of sale was made in good faith their verdict should be for the defendant.” This instruction, as also the granting of the plaintiff’s prayers, and the rejection of those of the defendant, were all excepted to by him.

Notwithstanding what had previously taken place the jury might well have been misled, when" informed voluntarily by the court, in very explicit terms, that the sole question for them was, as to the validity of the bill of sale, with direction to find a verdict for the plaintiff, if they believed that instrument to have been fraudulent, but if made in good faith then their verdict should' be in favor of the defendant. From this the jury might very readily have supposed it was their duty to decide in favor of the plaintiff if they believed the bill of sale was fraudulent, without making any enquiry in regard to a demand and refusal, or to an actual conversion at any time. Taking this view of the instruction we must consider it erroneous, after what has been said on the subject of conversion in reference to the plaintiff’s third prayer.

But the appellee’s counsel say this direction to the jury is not to be considered as standing by itself; on the contrary it *163 must be looked at in connection with the plaintiff’s prayers previously granted. Admitting this to be so, still the instruction will receive but little aid from such connection, inasmuch as we have decided that each of the plaintiff’s prayers is erroneous.

We affirm on the defendant’s prayers but reverse on those ©f the plaintiff, and also on the last instruction given by the court.

Judgment reversed and procedendo ordered.