Opinion
Argued December 13, 1892
Decided December 23, 1892
Ralph E. Prime for appellant. John M. Perry for respondent.
The sole point presented by this appeal is whether the question of fraud in respect to the title claimed by the plaintiff to the machinery embraced in the conditional sale of November, 1889, and to the castings embraced in the bill of sale of September 15, 1890, should have been submitted to the jury.
The fact that the plaintiff owned the property embraced in the conditional sale to Cora E. Florence in November, 1889, at the time of that sale, is undisputed; nor is there any question that a large part of the purchase money of the machinery was unpaid at the time of the levy of the attachment, September 17, 1890. The title to the machinery was, by the terms of the instrument of November, 1889, to remain in the plaintiff until paid for. This was a valid arrangement and constituted no fraud upon the creditors of Cora E. Florence. ( Cole v. Mann, 62 N.Y. 1.) The instrument seems to have been filed in the clerk's office of the city of Yonkers, November 30, 1889, but no filing was necessary under chapter 315 of the Laws of 1884, as against creditors of the vendee. It is not important, therefore, to inquire whether the instrument was filed in the proper office under the terms and for the purposes of that statute. The fact that the vendee was permitted to manufacture the materials embraced in the instrument and sell the manufactured articles, upon condition that the proceeds of the sale should be accounted for and paid to the vendors to apply upon the purchase price of the property, did not impair the rights of the vendor under the instrument of November, 1889, or render it void as to creditors of the vendee. ( Cole v. Mann, supra; Brackett v. Harvey, 91 N.Y. 214.) The proceeds of the sale were in fact applied as provided in the oral arrangement, and this had been done before the debt to Donnelly Co. had been contracted. We are unable to find that any fact was proved or was inferable from the evidence which raised any question for the jury as to the title of the plaintiff to the machinery levied upon by the sheriff.
The instrument of December 15, 1890, if a mortgage, was void as against the attachment creditor, because not filed before the levy of the attachment. (Laws of 1883, chap. 279, § 1.) There was no change of possession of the property embraced therein, and if that instrument was intended as a mortgage and not as an absolute transfer of the property, the defendant was entitled to direction in his favor as to the part of the goods taken by him included therein. So, also, if the evidence created a doubt whether the instrument was intended as a security merely, and not as an absolute transfer, that question should have been submitted to the jury. But while the word "security" was used by the plaintiff's witnesses in describing the transaction which was evidenced by the instrument, a perusal of the whole evidence leaves no doubt of its actual character. The instrument purported to be an absolute transfer. The castings embraced therein then in the course of manufacture were being made to fill an order given to Cora E. Florence by the Rand Drill Company, for which she was to receive the sum of $240. The work upon them was nearly completed, and their completion would require an expenditure of $10 to $12 only. The unsecured debt to the plaintiff from Cora E. Florence on open account was $310. There could be no surplus coming to her out of the property after payment of this debt. The circumstances leave no doubt that the instrument of September 15, 1890, was intended as an absolute transfer to the plaintiff of the castings to apply on the plaintiff's debt. Treating it as an absolute transfer the sale was nevertheless presumptively fraudulent as against the attaching creditors by force of the statute, by reason of the fact that there was no delivery of the goods to the vendee and no actual change of possession (2 Rev. St. 136, § 5), which presumption was conclusive unless it was made to appear on the part of the plaintiff that the sale was made in good faith and without any intent to defraud creditors or purchasers.
The defendant insists that the question of fraud based upon the absence of delivery or change of possession of the goods sold, should have been left to the jury. The presumption which the statute creates may be overcome by evidence of the fairness of the transaction. The evidence to establish the bona fides in such a case may be weak or strong, and it may be of such a persuasive character, resting upon uncontradicted evidence, that a court could say that the presumption was overcome, and direct a verdict. Where the evidence is such that admitting the presumption raised by the statute, it is so completely rebutted that a verdict finding the fraud would be set aside, then the statute "does not as now interpreted interfere with the jurisdiction of the court to direct a verdict." ( Bulger v. Rosa, 119 N.Y. 459.) The evidence in this case fully repelled the statutory presumption. The debt to the plaintiff was unquestioned. The value of the property was considerably less than the debt. The castings were being finished up and required an expenditure of a few dollars to make them deliverable upon the contract with the Rand Drill Company, and would be presumably of little value for any other purpose. They were left on the premises and in the legal possession of Cora B. Florence, to enable a workman to complete them, and were attached within two days after the bill of sale was executed and while the workman was engaged in finishing them. None of these facts were disputed on the trial, and on the whole evidence a case was furnished which we think justified the court in refusing to submit the question of fraud to the jury.
It is claimed, however, that some of the material facts were proved only by the testimony of the plaintiff's manager and that his credibility could not be assumed by the court, because of his interest, and that of his credibility the jury was the sole tribunal authorized to pass upon it. There is not the slightest ground of suspicion of the truth of any of the material facts in the case. The only fact relied upon by the defendant to impeach the instrument of November, 1889, was disclosed by the testimony of the manager and related to his permission to Cora E. Florence to use the materials embraced in that conditional sale, and sell the manufactured articles, and render the proceeds to be applied on the purchase money. It this testimony is stricken out, nothing whatever is left upon which any claim could be made affecting the title of the plaintiff to the machinery which constitutes the main item in the judgment. Taking the whole proceedings as disclosed by this record, the just inference is that no question was raised as to the credibility of the plaintiff's manager, and that the truth of his testimony was assumed. The point upon which the request to go to the jury as to the bill of sale of September 15, 1890, was based, was the statutory presumption of fraud, by reason of nondelivery and retention of possession of the property embraced therein, and as to the property embraced in the instrument of November, 1889, that the permission given to the vendee to sell made the title to the other property therein void as to creditors, or that the jury might so find.
We think the trial judge was justified in directing a verdict and the judgment should, therefore, be affirmed.
All concur.
Judgment affirmed.