Pennock v. McCormick

120 Mass. 275, 1876 Mass. LEXIS 171

• Court: Massachusetts Supreme Judicial Court
• Decided: May 5, 1876
• Status: Published

Opinion

Deyens, J.

What the evidence was which was admitted by the court, from the letters of Nichols and the reply to them, and the declaration of Nichols to the plaintiff and to Grunberg, against the objection of the defendant, does not appear by the bill of exceptions. We cannot infer that anything was thus admitted which was in any way unfavorable to the defendant, or which tended to prejudice his case. Kershaw v. Wright, 115 Mass. 361, and cases cited.

As between the parties to the absolute, formal bill of sale, it could not be shown, by proof of a paroi defeasance, that the conveyance was a mortgage, and the court correctly so ruled. Harper v. Ross, 10 Allen, 332. Evidence of a secret agreement between the parties, and conduct by them inconsistent with such a sale, was competent for the purpose of showing that the bill of sale was pretence and a fraud, intended merely to deceive creditors, or those who might deal with the parties, as to the goods, and not to express a real transaction. Súch evidencé was admitted by the court, it may be presumed, for this purpose; but this would not alter the transaction between the parties, which, whether real, pretended or fraudulent, was still in its character an absolute sale, and not a conveyance in mortgage only.

Exceptions overruled.