Hanks v. Andrews

¶1Attachment ?jg ofUfacts.find' The question in this case is not what inferences we might be most inclined to draw from the testimony on a trial of the issue of fact; but taking the finding of the trial court as conclusive as far as the evidence warrants, and deducing from the facts disclosed the strongest inference of fraud which their legal tendency will bear, do they sustain the court’s finding?

¶2Fraud— ^Op¿^ose o£ In that aspect, the case stands thus: A merchant who, according to his representations to the attaching creditor, was doing a prosperous business upon assets three times greater than his liabilities, in order to get an extension of time for the payment of a debt, threatens his creditor that, in case he declines to allow the extension, and puts the claim in the hands of a lawyer for collection, he will make such a disposition of his property as that the creditor will realize nothing. Such a state of facts justifies the inference of fraud. No court, we take it, would disturb the verdict of a jury on such,a showing. Drake on Attachments; sec. 75; Bank v. Whitmore, 104 N. Y., 297; Anthony v. Stype, 19 Hun (N. Y.), 265; White v. Leszynsky, 14 Cal., 165; Livermore v. Rhodes, 3 Robertson (N. Y.), 626.

¶3The case is to be distinguished from a threat merely to make an assignment, which being a lawful act and standing alone furnishes no evidence of an intended fraudulent disposition of property. Bishop’s Insolvent Debtors, sec. 203. While the subsequent execution of the assignment is evidence that that was the step contemplated by the debtor when he made the threat, we cannot say that the evidence did not justify the court in drawing a different conclusion. It may have been the result only of after honest advice from his counselors. According to the debtor’s representations, more than two-thirds in value of his assets were collectible choses in action. They are easily placed beyond the reach of creditors. The apparent insincerity of the debtor in his offer to. secure the plaintiffs’ claim and his prevarication about going to the bank to get money to pay it were circumstances the natural tendency of which was to produce the impression of an intent to gain delay for his private end. They ’do not well comport with a good motive. If his representations as. to the value of his assets were true, it is not probable that any lawful disposition of them could have been made by a preferential assignment for the benefit of creditors, so as to exclude the plaintiffs from participation. It is not improbable, therefore, that his threat implied an unlawful disposition of his property. If his representations as to his assets were false, the falsehood does not increase confidence in his intention to make an honest disposition of them.

¶4These were all pertinent facts for the consideration of the court trying the issue, and warrant the conclusion reached.

¶5Affirmed.