Emmons v. Westfield Bank

97 Mass. 230

Opinion

Foster, J.

*

The learned judge who presided at the trial was, in the opinion of the court, entirely right in refusing the several prayers for instructions proffered by the defendants, and the rulings given by him were unobjectionable. If we were to assume, which we do not, that the instructions are fully stated in the exceptions and that they were not so illustrated and applied to the facts as to guide and assist the deliberations of the jury, they would certainly be open to the objection of being meagre and unsatisfactory. But they are a correct statement of the law, and appear to have been reported only for the purpose of showing the views upon which the trial proceeded.

The instrument dated November 4, 1861, created between the plaintiff and Lewis Holcomb the relation of principal and agent and not a partnership. All the property acquired under it vested in the plaintiff, and Holcomb had no interest which could be attached by his creditors. This contract is one of a description not very unfrequent, by which a manufacturer is supplied with stock and materials which are to continue the property of the capitalist by whom they are furnished, although it is stipulated that the party who carries on the business shall ultimately receive any surplus which may remain after reimbursing their cost to the party furnishing them, with interest or a per centage of profit, by way of compensation for his capital. In these arrangements there is nothing illegal or contrary to the policy of the law. The possession of the property by the manufacturer in such a case is not like the continued possession of a vendor after a sale, and cannot be regarded as prima facie evidence of fraud in the transaction. Prima facie evidence we understand to be evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced. Certainly the circumstances detailed in the prayers for instructions were not of this character. They were proper to be submitted to the consideration of the jury, and such deductions were to be drawn from them as, in connection with all the other evidence in the case, seemed to the jury natural and proper.

The issue upon trial was whether the arrangement between the plaintiff and Holcomb was what on its face it purported to be, or, as the defendants alleged, a mere cover to delay or defraud the creditors of Holcomb. The burden of proof to maintain this issue of fraud was upon the defendants.

Some of the evidence rejected at the trial seems to us to have been pertinent to maintain this issue and to have been erroneously excluded. Holcomb was himself a witness, and testified that the property attached belonged to the plaintiff. To contradict him it was, of course, competent to prove anything that he had said or done indicating that the property in question or the other property embraced in the agreement of November 4, 1861, and its successive renewals, was really his own, or had been treated or represented by him to be so. The question whether Holcomb had paid the expenses of other people’s lawsuits out of • his property was competent by way of contradiction, as the fact, if proved, had some tendency to show that he had acted as if he himself owned the property which he testified belonged to the plaintiff The same remarks apply to the testimony as to the style and expense at which Holcomb lived while supported out of the proceeds of this property.

If Holcomb continued to treat and use it as his own, that fact tended to contradict his testimony that it belonged to the plaintiff. If he was allowed to do so by the plaintiff, that circumstance was competent on the question whether the arrangement was honest and genuine or fraudulent and nominal only.

In analogy to the rule familiarly applied in the trial of alleged fraudulent conveyances, it was competent to establish the fraudulent purpose of Holcomb in entering into the arrangement with the plaintiff. And as tending to show this, other frauds attempted or perpetrated by him prior to this transaction were admissible in evidence. In this view the statements of Holcomb in 1860, to the constable who then served a writ upon him, as to transfers of property to avoid attachment, should have been admitted.

So also the proposed testimony of Lewis Rice was competent that in 1861 Holcomb, when trying to borrow money on a mortgage, produced from his pocket several thousands of dollars, which he claimed to be his own property. It tended to show a fraudulent purpose on the part of Holcomb, if, prior to the contract with the plaintiff, he was found in possession of large sums of money kept in such a form as not to be attachable by his creditors, and at the same time was engaged in divesting himself of his visible property and was making arrangements to carry on, in the name of another and as agent, the business which he had previously conducted for himself.

The importance and weight of such items of evidence we are not in a position to estimate, but of its admissibility we entertain no doubt. We hardly need to add that fraud on the part of Holcomb would not be alone sufficient; and that the participation of the plaintiff in it was an indispensable part of the defendants’ case.

The testimony of Holcomb as to the cost of completing for market the skins attached was properly admitted, upon the question of their value when taken by the defendants.

The question proposed to the witness Wells, whether he had said that the skins belonged to Holcomb, was immaterial. It did not tend to contradict his previous testimony that he notj fled the defendant Cooley, the attaching officer, that they were the property of the plaintiff.

It appears from the foregoing considerations that a new trial must be granted, and we cannot deem it necessary to extend further an examination of the numerous items of evidence deiailed in the bill of exceptions. We have stated the principles which must govern the question of the admissibility of such evidence. It is divided naturally into the two general heads: first, of testimony admissible to contradict other testimony, particularly that of Holcomb ; second, of testimony admissible to show the fraudulent character of the arrangement between Holcomb and the plaintiff. Evidence of the latter description relates to the fraudulent purpose of Holcomb, and includes proof of other fraudulent acts by him prior to the transaction under investigation and evidence tending to implicate the plaintiff as a participant in this alleged fraud. A more minute review would be unprofitable, because at another trial many of the questions may arise in a different form and not appear in precisely the same light as on the present report. Exceptions sustained.

This case was argued at Boston, January 30-31, 1868, before Hoar, Gray Foster and Wells, JJ.