Wyman v. Hart

12 How. Pr. 122

• Court: New York Supreme Court
• Decided: January 15, 1855
• Status: Published

Opinion

Mitchell, Justice.

The defendant having levied on goods which once belonged to Flandrow, and had been previously sold under execution to the plaintiff,.defended himself in an action for taking the goods, on the ground that the sale to the plaintiff was fraudulent.

The defendant, without objection, allowed Brigham to testify that Wyman had called on him, and requested him to sell goods, and that Flandrow would call and pick them out; and then, on cross-examination, brought out also what Wyman said when the credit expired on the sale, viz., that Flandrow was to pay out of the store. The judge then asked what Wyman said when he called on the witness at the time above stated, and the witness answered, that Wyman said he had assumed the business of the store to secure himself for liability incurred in settling Flandrow’s debts. The defendant excepted to this last question. It may be that it was admissible to explain the previous testimony which was not objected to, and as to which there was a cross-examination; but, whether admissible or not, the defendant himself proved nearly the same facts by another witness, W. A. Douglass, who says that “ Wyman said that Flandrow was his agent, and that he (Wyman) had purchased the property to help Flandrow along; and that Flandrow was to receive a certain amount for his trouble.”

The exception, therefore, should not be sustained. The judge left to the jury the question, whether the sale was in good faith, and not to hinder or delay creditors; and the defendant excepts to this, that the judge should have said, not to hinder, delay, or defraud creditors. If the sale was in good faith, it could not have been to defraud creditors; and if it was desired that the question oí fraud should be brought more distinctly before the jury, a general exception was too indefinite— the omission of the word “ defraud ” should have been specified.

It was urged by the defendant, that there was fraud in the sale on the execution, because the property was put up in but few parcels. It was shown that it was so put up by the sheriff of his own judgment and will; and that Wyman'did not attend the sale, but had requested Flandrow to procure Sinclair to attend the sale, and buy the goods if they went below their value, and that Sinclair did so attend.

The judge charged that Sinclair, under this authority, was the plaintiff’s agent only to buy for him, and not for'the purpose of directing the manner of the sale, and that Wyman was not accountable for .any fraudulent act of Flandrow at the sale authorized by Wyman.

It certainly would be a dangerous doctrine to lay down, that if a defendant in an execution caused the sale to be conducted fraudulently, the plaintiff in the execution should be responsible for it. If there were evidence of connivance between the two, the one would be responsible for the acts of the other— but otherwise they are adverse parties; and one cannot be affected by the fraud of the other, if he takes no part in it.

The authority of Sinclair was limited to buying for the plaintiff, and, as the judge correctly charged, gave him no control over the conducting of the sale.

New trial denied, with costs.

Roosevelt, J., on the facts as to a fraudulent sale, dissented.