Yoder v. Reynolds

72 P. 417, 28 Mont. 183, 1903 Mont. LEXIS 69

• Court: Montana Supreme Court
• Decided: May 11, 1903
• Docket: No. 1,544
• Status: Published

Opinion

.MR COMMISSIONER CALLAWAY

prepared the opinion for the court.

In order to arrive at an understanding of the issues involved in this appeal, it is necessary to- state the case somewhat in detail.

It appears from the record that one Jacobson and Hyrum Graehl were engaged in the grocery business in Butte for some years prior to 1894 under the name of Jacobson & Graehl, and that Lorenzo Graehl bought Jacobson out, probably in 1894, and the firm then became Graehl & Graehl. On August 19. 1890, H. Graehl and A. N. Yoder executed to- Hattie 0. Libby a note for $300, due in six months after date, and bearing interest a.t one per cent per month. On August. 22, 1893, II. Graehl and A. N. Yoder executed to. Hattie O. Libby a note for $350, due in one year after date, and bearing interest at one -and one-half per cent, per month. On January 22, Í896, Graehl & Graehl and A. N. Yoder executed to W. A. Clark & Broi. a note for $300, due in sixly days after date-, and bearing, interest at one- per cent, per month. At the time of the trial, Hattie C. Libby had become the wife of the plaintiff, Yoder. A bill of sale was introduced in evidence, which purports to have been executed by Lorenzo to Hyrum Graehl on March 6, 1896, and which conveys to Hy-rum all of Lorenzo’s right, title and interest in the firm and business of Graehl & Graehl for a consideration of $500. After executing this bill of sale, Lorenzo went prospecting in Madison county, where he remained some six or seven months. On March. 17, 1896, Hyrum Graehl executed and delivered to1 the plaintiff, Yoder, a bill of sale, whereby he conveyed all his “right, title, and interest in and to the following described personal property,” describing it in detail — such as “2,000 lbs. flour, 300 lbs. corn meal, 300 lbs. bacon, 4 chests tea,” etc. No mention is made in this bill of sale of the good will of the business. The plaintiff testified: “On the 17th day of March I bought- this stock of goodsi at 101 South Main street. I found H. Graehl in possession there. The consideration that I paid for that stock of goods was $1,100. I paid it by those notes and other money that he had borrowed up> to- that time.” The Libby notes are indorsed as follows: “March 17, ’96. Received payment in full to date from A. N. Yoder. Hattie C. Libby.” The W. A. Clark & Bro. note bears this writing on its fact: “Canceled. Paid for stock. A. N. Yoder.” It is indorsed: “Pay to A. N. Yoder or order without recourse, W. A. Clark & Bro., per Alex. J. Johnston, Cash.” When the bill of sale from Hy-rum Graehl to plaintiff was executed, one Joseph Graehl, a brother of Lorenzo and Hyrum,, was present, and at the same time Hyrum sold and transferred to said Joseph Graehl all of the book accounts of the firm of Graehl & Graehl. When these legal documents were completed, plaintiff testified that he took possession immediately — it was then eleven o’clock at night— and placed Joseph Graehl in charge as his agent. On the next day the defendant, who was then sheriff of Silver Bow county, acting under a writ of attachment issued in an action wherein A. P. Bray was plaintiff and the firm of Graehl & Graehl were defendants, took possession of the stock of goods described in the bill of sale from Hyrum Graehl to- plaintiff, and also- took possession of plaintiff’s storeroom. He demanded the keys of plaintiff, and, upon receiving them, put the plaintiff out, locked' the doors, and kept possession of the storeroom for about forty-five days. In due time Bray recovered judgment against the Graehls, had execution issued thereon, and the defendant, as such sheriff, sold the goods claimed by plaintiff in pursuance thereof. The plaintiff then began this suit.

Plaintiff states his cause of action in two. counts. The first is in the usual form of an action for damages for the wrongful conversion of personal property, the plaintiff praying for judgment against the defendant in the sum of $1,150. In the second cause of action the plaintiff alleges “that on the 18th day of March, 1896, he was the owner and in possession, and entitled to the possession, of all the following described property, to-wit.” Then follows a description of the personal property as shown in his bill of sale, and then this allegation: “That on the said 18th day of March, 1896, plaintiff was then and there the owner of said stock of goods* and of a leasehold estate in and to the said storeroom and premises, and was'engaged in a profitable business in selling and dealing in groceries at retail at No. 101 South Main street, Butte, Montana.” Then, “that on the said 18th day of March, 1896, the defendant wrongfully and without the consent'of plaintiff entered upon the said premises, and ousted and ejected plaintiff therefrom, and took possession of the said stock of goods, and wholly deprived plaintiff of his said stock of goods and of his said storeroom and place of business, and wholly destroyed plaintiff’s said business, to the damage of plaintiff in the sum of one thousand dollars.”

The defendant denies generally the allegations of both counts of plaintiff’s .complaint, and pleads justification as to each. He alleges that, as the sheriff of Silver Bow county, he took the personal property described in plaintiff’s complaint under and by virtue of a writ of attachment issued out of the district court of his county in an action wherein A. H Bray was plaintiff and the firm of Graehl & Graehl were defendants, and that all of the property so attached was the property of Graehl & Graehl at the time of the attachment; “that the plaintiff herein, A. N. Yoder, claims to have been entitled to the possession, and to have been the owner of all the said property attached as aforesaid, and described in the complaint herein, on said March 18, 1896, by virtue of a pretended bill of sale of said property executed on said day to said A. N. Yoder by said Hy rum Graehl, but defendant alleges that the said pretended bill of »ale was a covinous and fraudulent transfer, made without valid consideration in law, not accompanied by immediate actual and continued change of possession, and not an absolute transfer of said property as it pretended to be, but a transfer in trust to secure said A. N. Yoder for an individual indebtedness of Hyrum Graehl, contracted long prior to his partnership with Lorenzo Graehl as Graehl & Graehl, and with a secret understanding with said Yoder that, whatever of said property or its proceeds remained after .paying such individual indebtedness, such balance should be paid to- Graehl & Graehl, or revert to them as their property; that said transfer was made with intent to hinder, delay, and defraud the creditors of said firm of Graehl & Graehl, and prevent the enforcement of their demands against Graehl & Graehl, and was such a conveyance as would hinder, delay, and defraud the creditors of the said Graehl & Graehl.” In this affirmative defense no justification is attempted to be made by defendant for his possession of plaintiff’s storeroom.

The plaintiff, by replication, denies all the affirmative matter asserted in the answer.

It is proper to suggest that the pleadings of the respective parties were treated by them as sufficient in the court below. Upon the trial the jury found for the defendant. From an order denying plaintiff’s motion for a new trial, he prosecutes this appeal.

1. At the trial the plaintiff was asked: “Q. Do you know anything relative to the value of the good will of the business which you had purchased there on the 17th day of March ? A. Yes; I think I do. Q. What was the good will of that business worth?” This latter question was objected to “for the reason that it calls for a speculation and is too remote.” The court sustained the objection, and plaintiff assigns error. The court’s ruling was correct, but for other reasons than those urged. No foundation was laid for any suck evidence either in the pleadings* or in the previous testimony of the plaintiff. Tke good will 'of a business is property, transferable like any other (Section 1372, Civil Code), but it does not appear that the plaintiff ever purchased the good will of the firm of Gfraehl 6 Graehl. On the contrary, the plaintiff received from Hyrum Graekl an itemized bill of sale, particularly specifying the property sold, and evidence could not be received to add to the terms of this writing, so as to show that the good will formed a pai’t of the act of sale. (Hebert v. Dupaty, 42 La. Ann. 343, 7 South. 580.)

The question asked called for evidence which was wholly inadmissible for any purpose and it was therefore subject to a mere general objection, which that urged was, in effect

2. The plaintiff was asked the following question: “Taking into consideration the fact that you had a leasehold interest in that storeroom, and that you were deprived of the possession of the storeroom, and that you were deprived of a building to carry on'the business, by reason-of the sheriff of Silver-Bow county, Montana, taking possession of that storeroom, what amount of damage did you suffer by reason of the taking of the building and good will of the business and storeroom by the sheriff?” This was objected to “for the reason that such damage is -merely speculative or prospective damage, and does not relate to the actual damage, and there has been no evidence offered tending to show that the business was carried on there at any profit, but, rather, at a loss.” The court sustained the objection, to which plaintiff takes exception.

In this ruling the court did not err. The objection amounted to a mere general one. When an “offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection is made,” and the party against whom tbe ruling is made cannot complain because tbe objection is too general. (Jones on Evidence, See. 897.)

3. The plaintiff complains because tbe court refused to strike out certain incompetent testimony of tbe witnéss Bray. An inspection of tbe record discloses tbe fact that tbe plaintiff sat by and allowed it to go to tbe jury without objection, and aftei'ward moved to strike it out. If tbe testimony bad been favorable to plaintiff, presumably ba would bave been satisfied to allow it to remain. In permitting it to be adduced without objection, be took tbe chance of being injured, should it prove unfavorable. It is tbe settled law that one must object to improper testimony when it is offered, or abide tbe result. Tbe failure to object at tbe proper time waives tbe error. (Jones on Evidence, See. 898; Hughes v. Ward, 38 Kan. 452, 16 Pac. 810; Cleveland C., C. & I. Ry. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; Dallmeyer v. Dallmeyer (Pa.), 16 Atl. 72; Chicago, St. L. & P. R. R. Co. v. Champion, 9 Ind. App. 510, 36 N. E. 221; Perkins v. Brainerd Quarry Co. (Com. Pl.), 32 N. Y. Supp, 230; Haverly v. Elliott, 39 Neb. 201, 57 N. W. 1010; Vermillion Artesian Well, etc. Co., v. City of Vermillion, 6 S. Dak. 466, 61 N. W. 802.) An exception toThis ruléis that when testimony is offered which may be competent upon tbe showing made, and its incompetency is afterwards developed, either by tbe subsequent testimony of tbe witness, or upon bis cross-examination, or when incompetent testimony is volunteered by tbe witness in response to a proper question, it should be stricken out on motion.

4. Tbe court gave tbe jury the following instruction at the request of tbe defendant: (No. 1) “If you believe from tbe evidence that tbe alleged transfer of bis interest in tbe partnership from Lorenzo Graehl to Hyrum Graehl was made without consideration or secretly, or for any fraudulent purpose, or to allow said Hyrum Graehl to make a transfer, of tbe partnership property to Yoder upon the notes given in evidence, and with intent to binder, delay, and defraud creditors of tbe partnership in that way, then you must find that the bill of sale or transfer from Hyrum Graehl to A. N. Yoder of the stock of goods afterwards attached was not a legal or valid conveyance, and did not prevent the levy of the attachment by the creditors. And if you find that the plaintiff, Yoder, was not the legal or real owner of the notes introduced in evidence, at the time of the said transfer of the stock of "goods, but the facts concerning the true ownership of said notes were concealed for the purpose or with the designed effect of defrauding or defeating creditors of said partnership^ or that the indebtedness evidenced by the said notes, or any of them, was the individual indebtedness of said Hyrum G-raehl, and not of the partnership, and that the partnershipi still existed as to the creditors up to the time of such alleged sale, then you must disregard such’ transfer, as the same would not be supported, in law, under such facts, but would be void, as to the rights of the creditors of said partnership.” This was error. This instruction practically told the jury that if Lorenzo Graehl had transferred his interest in the partnership to Hyrum without consideration or secretly, or for any fraudulent purpose, or to enable Hyrum to commit a fraud, then it should find against the plaintiff, even though he be an innocent purchaser in good faith, and for a valuable consideration. The bill of sale might have been fraudulent between the Graehls, but how could that have prejudiced the rights of one who knew nothing of such fraud ? This instruction also erroneously told the jury, in effect, that the plaintiff did not have the right to secure himself by a bona -fide purchase of the property, even though he was liable for the payment of the three notes introduced in evidence.

Another ground of criticism of this instruction is that there was no evidence adduced by either plaintiff or defendant as to whether the ownership of the notes was concealed by any one. Instructions must be warranted by the pleadings and evidence. (Brownell v. McCormick, 1 Mont. 12, 14 Pac. 651; Kelley v. Cable Co., 1 Mont. 70, 14 Pac. 633; Walsh v. Mueller, 16 , 40 Pac. 292; Goodkind v. Gilliam, 19 Mont. 385, 48 Pac. 548.) But we fail to. see what difference it could malee to the creditors of the firm of Graehl & Graehl whether the ownership of the notes was in the plaintiff or Hattie 0. Libby, so long as the firm was liable for the payment thereof.

5. Instruction No. 2 is erroneous because not warranted by the evidence. The alleged sale to plaintiff was made by Hyrum Graehl, and not by the firm of Graehl & Graehl. This is one of the undisputed facts in the case.

6. We cannot approve of instruction No. 5. It is argumentative in form, and likely to prejudice the jury.’ The principles of law treated by it may be easily stated to the jury without resort to innuendo.

I. In instruction No. 6 the court commented on the weight to be given the evidence of the parties 1» the action This was error. “The jury being the sole judges, of the weight to be given to the testimony, the court should not tell them what particular weight to give to any portion thereof.” (State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; Wastl v. Montana Union R. R. Co., 17 Mont. 213, 42 Pac. 772; Knowles v. Nixon, 17 Mont. 473, 43 Pac. 628; State v. Gay, 18 Mont. 51, 44 Pac. 411.) And while the court gave the true rule at the end of this somewhat lengthy instrnotion, that did not remove or overcome the objectionable feature mentioned ; as completed, different portions of the instruction are conflicting, and it is therefore misleading.

8. Instruction No. 8 is as follows: “If you find from the evidence that the alleged sale fromi Lorenzo Graehl to Hyrum Graehl about March 6, 1896, was not made for valuable consideration, or in good faith as to the creditors, and was not'published or given notice of to the creditors, but remained secret, then you will not consider such transfer as vesting the- title to said property in Hyriim Graehl alone; but if you find that the Graehls or Hyrum Graehl continued to carry on business at the same place in the same manner as before, under the name and style of Graebl & Graebl, tben a transfer from bim alone to tbe plaintiff, Yoder, would not be valid as against tbe creditors of said firm.” Tbis is erroneous. Whether tbe bill of sale from Lorenzo to Hyrum was fraudulent or not, it conveyed to Hyrum tbe legal title to tbe property, so far as Lorenzo1 was concerned, and placed Hyrum in a position to give an absolutely good title to one purchasing in good faith, for a valuable consideration, and without notice of existing defects. Ln order.to vitiate tbe sale from Hyrum Graebl to plaintiff, it was incumbent uppn tbe defendant to affirmatively connect tbe plaintiff with tbe fraud, if any there was.

9. Instruction No. 9 is incorrect because not warranted by the evidence. That Lorenzo Graebl conveyed bis interest in tbe partnership to Hyrum by bill of sale dated March 6, 1896, was conceded. Therefore tbis instruction is erroneous for tbe same reasons given as to instruction 8.

10. Instruction No. 16 reads,, in part, as follows: “Tbe. jury is instructed that tbe burden of proof is on tbe plaintiff to show by the preponderance or greater weight of tbe evidence bis right to tbe possession of tbe property in controversy.” In tbis instruction tbe court should not have used the words “tbe property in controversy.” Tbe plaintiff’s leasehold interest in tbe storeroom was a part of tbe property in controversy, and tbis tbe defendant did not levy upon. So1 far as tbe record is concerned, tbe defendant was a trespasser in tbe storeroom, of which be retained possession for about forty-five days. While there was no proof as to any special damage sustained by plaintiff upon tbis branch of tbe case, be was, under tbe proofs adduced, entitled to nominal damages for tbe defendant’s trespass.

11. Defendant’s instruction II is erroneous for tbe sáme reason assigned as to instruction No. 16. It should also have correctly stated tbe initials of plaintiff’s name.

12. Tbe court instructed the jury at great length. Eighteen pages of the record are taken up. by tbe instructions. Wbetber they are all in tbe record, we do not know, but it appears to1 contain over thirty of them.. Those before us were not numbered by the court, and we have been obliged to designate them by the numbers given in appellant’s brief.

How the jury'could have been aided in its labors by this mass of reading is conjectural. Aside from being of such great length, the instructions are replete with repetition and legal verbiage. Instructions are given to a jury to enlighten, not to confuse, it. The court should not attempt to' instruct á jury as to all the law extant upon the particular subject under consideration. In the case at bar a few brief and clear instructions would have been ample to aid the jury in its investigations.

For the reasons given, we are of the opinion that the order should be reversed, and the cause remanded for a newr trial.

Pee Cueiam. — For the reasons given in the foregoing opinion, the order is reversed, and the cause is remanded for a new trial.