Potter, J.
There was, by stipulation of the parties, but one issue really to be tried in this action, viz: Was the property in question, at the time it was levied upon by the defendants, the property of William GL McClune, or was it the property of the plaintiff? If this was a questisn of fact, it was settled by the jury, audit would be our duty only to hold the judgment entered upon the verdict to he correct, unless it was clearly against evidence.
■ The general term reversed the judgment on the ground, as [79]*79stated in the opinion, that the verdict was against evidence. In this respect it seems to me the general term was clearly in error. There was no conflict of testimony in the case. Two witnesses distinctly swore it was the plaintiff's property. There was no fact sworn to that was contradicted. All the oral evidence in the case, is, that the property was the plaintiff's. The jury could have given no other verdict than they did, but upon inferences arising from the manner of transacting the business, which amoiint to an impeachment of the oral evidence. If these circumstances, and the inferences to be drawn from them, were in conflict with, or contradictory of, the oral evidence, the question was still a question for the jury. If the manner in which the plaintiff loaned his money and the conduct of the business by William G-. McClune was evidence of fraud against the creditors of the latter, still it was only evidence, and the question was still one for the jury. Unless such conduct of business by one, upon capital advanced by another, is a fraud in law, fraud per se, then it is only evidence of fraud to be weighed by a jury.
It is not fraud per se, for one person to employ another who is insolvent, and indebted largely to others, to act as his agent in the transaction of business; he only runs the risk of creating circumstantial evidence which may affect his title to the property thus controlled by the agent. It is not fraud, per se, for a son to advance money or credit in aid of, or entirely to support his father, — he is under a moral as well as a legal obligation to do so. There is no rule of law directing or limiting the manner in which he shall afford the voluntary support in such case. If he gives his father no false credit before the world, by-the manner of his advances, he commits no fraud. The defendants are not persons who have dealt with the plaintiff's agent, and who claim to have been deceived, or induced to the giving him a false credit. Assuming that the method and object of this business was solely for the support of the father of the plaintiff, and that the plaintiff not only loaned his money but his credit for this purpose, it might still be, — it is possible that it might be, — not only an honest but a praiseworthy act; it was not necessarily, and as a matter of law, fraudulent.
Whether, therefore, it was the one or the other, depended [80]*80upon the evidence in the case; and the learned judge at the trial rightly submitted this question upon the evidence to the jury. If there was evidence to go the jury, as it seems to me clearly there was, it is an unusual exercise of the power of review to set their finding aside as against evidence. It will be seen the court did not reverse the judgment on the ground that the evidence was insufficient to go to the jury; or that the judge should have nonsuited the plaintiff; or even that the judge erred in his charge, or in his refusal to charge, but, “ that the verdict is clearly against evidence.” With great respect, I think the verdict was strongly sustained by evidence — certainly there is evidence enough to support it. That the court below were satisfied with the dispensation of the law by the judge on the trial, is clear, by putting their reversal not upon any error committed by the judge, but alone on the ground of its being against evidence.
They say “ the evidence in the case shows that it was a mere loan of credit by the plaintiff to his father, William G-. McClune.” This question was put to the jury by the learned' judge at the trial, as a question of fact: “ That it was a question of fact whether it was a mere loan of credit, or a case of agency.”- And the jury answered it by their verdict. The supreme court themselves say, it was a question oí t evidence. The jury passed upon it as a question of evidence; and that the court differed with the jury in their finding in this particular is not a sufficient reason for reversing the judgment. The cases are" too numerous and uniform upon this point to require them to be cited. It cannot be assumed, as a matter of law, that a son may not support his father by indirection, in aiding him with loans of money and credit, to enable the father thus to conduct business and to thus contribute to his own support. Much less may it be assumed that a son may not support his father by giving him the use or profits of business in the way of an agency, the son continuing to hold the title as principal. And, whether the act be one of genuine filial duty and kindness on the part of the son thus to aid a parent, or a fraudulent scheme to cheat creditors, is, above most others, a question of fact exclusively the province of a jury to determine. If it was the former, there was an advantage to the son in support[81]*81ing the father in chis manner, and he would not he a mere volunteer loaning his credit to another without advantage to himself. The case of Taylor v. Perkins, 86 Wend. 124, is not controlling, as authority, in this case; it is unlike it in most important particulars. That was a case where one made and assumed advances to aid another in carrying on business, without any benefit or advantage to him who made the advances, and where the person receiving the advance, claimed and held himself out to be the owner of the property. True, there was a verbal agreement between the parties that the party thus advancing means should have the control and disposition of the property acquired by the means furnished, but the party advancing the means, and allowing the business to be conducted in the name of the borrower, gave him a false credit, and the creditors so trusting were held to have the superior right. The distinction is plain.
I am clearly of opinion that the court below were in error in reversing the judgment, and that their judgment should be reversed.
Wright, J.
I think the proper disposition was made of the case at the circuit. It was admitted that the property had been taken and sold by direction of the defendants. To entitle the plaintiff to recover, it was only required of him to show that he was the owner of it when converted. This he did; or at least the testimony adduced by him on the question of ownership was such, that it would have been an error in the judge to have granted a nonsuit, or what was the same thing in effect, to have complied with the request to instruct the jury, as matter of law, that such testimony showed that he had no title to the property.
[Here the learned judge stated the facts in the case, as -jabove:]
In view of these facts, there is no force in the suggestion that the judge should have nonsuited the plaintiff. On the contrary I think, it wo uld clearly have been error to have determined as matter of law, that he had shown no title to the property in controversy, which the judge must necessarily have done had he granted the motion. Stress might be laid on the eircum[82]
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Potter, J.
There was, by stipulation of the parties, but one issue really to be tried in this action, viz: Was the property in question, at the time it was levied upon by the defendants, the property of William GL McClune, or was it the property of the plaintiff? If this was a questisn of fact, it was settled by the jury, audit would be our duty only to hold the judgment entered upon the verdict to he correct, unless it was clearly against evidence.
■ The general term reversed the judgment on the ground, as [79]*79stated in the opinion, that the verdict was against evidence. In this respect it seems to me the general term was clearly in error. There was no conflict of testimony in the case. Two witnesses distinctly swore it was the plaintiff's property. There was no fact sworn to that was contradicted. All the oral evidence in the case, is, that the property was the plaintiff's. The jury could have given no other verdict than they did, but upon inferences arising from the manner of transacting the business, which amoiint to an impeachment of the oral evidence. If these circumstances, and the inferences to be drawn from them, were in conflict with, or contradictory of, the oral evidence, the question was still a question for the jury. If the manner in which the plaintiff loaned his money and the conduct of the business by William G-. McClune was evidence of fraud against the creditors of the latter, still it was only evidence, and the question was still one for the jury. Unless such conduct of business by one, upon capital advanced by another, is a fraud in law, fraud per se, then it is only evidence of fraud to be weighed by a jury.
It is not fraud per se, for one person to employ another who is insolvent, and indebted largely to others, to act as his agent in the transaction of business; he only runs the risk of creating circumstantial evidence which may affect his title to the property thus controlled by the agent. It is not fraud, per se, for a son to advance money or credit in aid of, or entirely to support his father, — he is under a moral as well as a legal obligation to do so. There is no rule of law directing or limiting the manner in which he shall afford the voluntary support in such case. If he gives his father no false credit before the world, by-the manner of his advances, he commits no fraud. The defendants are not persons who have dealt with the plaintiff's agent, and who claim to have been deceived, or induced to the giving him a false credit. Assuming that the method and object of this business was solely for the support of the father of the plaintiff, and that the plaintiff not only loaned his money but his credit for this purpose, it might still be, — it is possible that it might be, — not only an honest but a praiseworthy act; it was not necessarily, and as a matter of law, fraudulent.
Whether, therefore, it was the one or the other, depended [80]*80upon the evidence in the case; and the learned judge at the trial rightly submitted this question upon the evidence to the jury. If there was evidence to go the jury, as it seems to me clearly there was, it is an unusual exercise of the power of review to set their finding aside as against evidence. It will be seen the court did not reverse the judgment on the ground that the evidence was insufficient to go to the jury; or that the judge should have nonsuited the plaintiff; or even that the judge erred in his charge, or in his refusal to charge, but, “ that the verdict is clearly against evidence.” With great respect, I think the verdict was strongly sustained by evidence — certainly there is evidence enough to support it. That the court below were satisfied with the dispensation of the law by the judge on the trial, is clear, by putting their reversal not upon any error committed by the judge, but alone on the ground of its being against evidence.
They say “ the evidence in the case shows that it was a mere loan of credit by the plaintiff to his father, William G-. McClune.” This question was put to the jury by the learned' judge at the trial, as a question of fact: “ That it was a question of fact whether it was a mere loan of credit, or a case of agency.”- And the jury answered it by their verdict. The supreme court themselves say, it was a question oí t evidence. The jury passed upon it as a question of evidence; and that the court differed with the jury in their finding in this particular is not a sufficient reason for reversing the judgment. The cases are" too numerous and uniform upon this point to require them to be cited. It cannot be assumed, as a matter of law, that a son may not support his father by indirection, in aiding him with loans of money and credit, to enable the father thus to conduct business and to thus contribute to his own support. Much less may it be assumed that a son may not support his father by giving him the use or profits of business in the way of an agency, the son continuing to hold the title as principal. And, whether the act be one of genuine filial duty and kindness on the part of the son thus to aid a parent, or a fraudulent scheme to cheat creditors, is, above most others, a question of fact exclusively the province of a jury to determine. If it was the former, there was an advantage to the son in support[81]*81ing the father in chis manner, and he would not he a mere volunteer loaning his credit to another without advantage to himself. The case of Taylor v. Perkins, 86 Wend. 124, is not controlling, as authority, in this case; it is unlike it in most important particulars. That was a case where one made and assumed advances to aid another in carrying on business, without any benefit or advantage to him who made the advances, and where the person receiving the advance, claimed and held himself out to be the owner of the property. True, there was a verbal agreement between the parties that the party thus advancing means should have the control and disposition of the property acquired by the means furnished, but the party advancing the means, and allowing the business to be conducted in the name of the borrower, gave him a false credit, and the creditors so trusting were held to have the superior right. The distinction is plain.
I am clearly of opinion that the court below were in error in reversing the judgment, and that their judgment should be reversed.
Wright, J.
I think the proper disposition was made of the case at the circuit. It was admitted that the property had been taken and sold by direction of the defendants. To entitle the plaintiff to recover, it was only required of him to show that he was the owner of it when converted. This he did; or at least the testimony adduced by him on the question of ownership was such, that it would have been an error in the judge to have granted a nonsuit, or what was the same thing in effect, to have complied with the request to instruct the jury, as matter of law, that such testimony showed that he had no title to the property.
[Here the learned judge stated the facts in the case, as -jabove:]
In view of these facts, there is no force in the suggestion that the judge should have nonsuited the plaintiff. On the contrary I think, it wo uld clearly have been error to have determined as matter of law, that he had shown no title to the property in controversy, which the judge must necessarily have done had he granted the motion. Stress might be laid on the eircum[82]*82stance that the purchase and shipment of the particular property to the New York market, was a mere speculatory venture —an isolated transaction; and the goods no part of the stock in trade of the grocery, which the defendants insist was established and conducted solely for the benefit of the plaintiff’s father. That business did not consist in buying produce to resell in the New York market. But treating the transaction as being in some way parcel of the grocery business, the question recurs, was the plaintiff or William G. McClune the purchaser of the property converted ? On this question the proof tended but one way. William G. McClune himself was the principal witness, and he testified distinctly that he bought the property for and on account of the plaintiff. The vendors corroborated him in his statements, and the plaintiff likewise, for he ratified his agency in the matter by subsequently paying the purchase money in whole or in part. The claim made on the trial, and reasserted here, that the goods were not bought by the plaintiff, but by William G. McClune, the father, with money borrowed on the plaintiff’s credit, rests not, as is asserted, “on admitted” facts. William G. McClune, it is true, was the actor in making the purchases, but whether he made them as plaintiff’s agent and for him, or for himself, was the'point in dispute. To have held that he acted for himself, and not for the plaintiff, in this particular transaction, — that no case of agency was shown, but that McClune himself was the purchaser, and the plaintiff occupied the relation only of Ms creditor, — would have been clearly against the whole drift of the evidence.
Again,. if it were conceded that the property, the title to which is involved in this case, was brought as part of the stock in trade of the grocery, it would not follow as a legal consequence that William G. McClune, and not the plaintiff, was the owner of it. I apprehend it was competent for the plaintiff to have established the grocery, provided the means, and made his *, father his agent for carrying it on, and given the latter the entire proceeds. Such an arrangement would not make the father the owner of the property brought into the business, nor would the plaintiff be exonerated from liabilities incurred by his agent within the scope of the business. This is claimed, on one side, to have been the real nature of the transaction. [83]*83On the other, it is insisted that the case showed William G. McClune to have been the principal in the business, the plaintiff merely loaning to him his credit, and that the only relation existing between them was that of debtor and creditor. I think the evidence preponderated in favor of the former instead of the latter view of the case; but it is quite enough that there was any question on the subject.
The order granting a new trial should be reversed, and the judgment of the special term- affirmed.
A majority of the judges concurred.
Order reversed, and judgment for plaintiff on the verdict, with costs.