Sonnenschein v. Bartels. Brazda Bros. disposed of their stock, then you will be justified in finding that the parties had such knowledge of the fraudulent purposes of Brazda Bros." Plaintiffs in error say that the instruction was erroneous for the reason "that there is no testimony tending to show that Brazda Bros. disposed of their stock of goods with intent to defraud their creditors, much less that plaintiffs in error knew of such fraudulent intention, if it existed." We think that there was evidence which tended to show that the sale from Brazda Bros. to the plaintiffs in error was made with the intention on the part of both vendors and vendees to hinder and delay the creditors of Brazda Bros. There was no error in the giving of this instruction. It it also alleged that the court erred in giving instructions 1 to 8, both inclusive, asked by the defendants in error. And this error is based on the contention of the plaintiffs in error that the instructions were not applicable to the evidence in the case. We have stated above the synopsis of the testimony bearing upon the good faith of the sale made by Brazda Bros. to plaintiffs in error. The instructions complained of as not applicable to this evidence are as follows: "1. If you find from the evidence that the plaintiffs in this case acquired their alleged title to the goods in controversy by purchase from Brazda Bros.; and if you further find that the Brazda Bros., in making such sale to the plaintiffs, intended thereby to hinder, delay, and defraud their creditors, and that the plaintiffs in purchasing the same participated in, or knew, or had notice of, such fraudulent intent on the part of said Brazda Bros., before or at the time they made such purchase, then you will be authorized to find that the plaintiffs acquired no title to said. goods as against the creditors of Brazda Bros. "2. An actual agreement or conspiracy between the Brazda Bros. and the plaintiffs, that the latter would aid Sonnenschein v. Bartels. the former to defraud their creditors, does not have to be shown. It is sufficient to avoid the sale if the facts and circumstances within the knowledge of the plaintiffs are such as fairly induce the belief that they either knew of the fraudulent purpose of the Brazda Bros., or, having good reason to suspect it, they purposely refused to make inquiry and remained willfully ignorant. "3. The court instructs the jury that fraud in the sale or conveyance of property is a fact that may be proved by showing the existence of other facts and circumstances surrounding or connected with the transaction tending to show a fraudulent intent on the part of the parties to such sale or conveyance, or tending to show a purpose not consistent with an honest intent, and if the jury believe, from the evidence in this case, as shown by the proof of facts and circumstances, that Brazda Bros. intended by the sale of the property in controversy in this action to hinder, delay, and defraud their creditors, and that the plaintiffs, in purchasing the same, participated in, or knew, or had notice of, such fraudulent intent on the part of Brazda Bros. before or at the time they made such purchase, then in such case the defendants are entitled to recover in this action. "4. The court instructs the jury that if they believe Brazda Bros. sold and conveyed the property in controversy to the plaintiffs, and they further believe from the evidence that Brazda Bros. intended by such sale to hinder, delay, and defraud their creditors, and that before or at the time the plaintiffs made such purchase they had knowledge or notice of such fraudulent purpose of Brazda Bros., or before or at the time of such purchase the plaintiffs had knowledge of such facts and circumstances as would have aroused the suspicion of and put a reasonably prudent man upon inquiry, which inquiry, if pursued, would have led to knowledge or notice of such fraudulent intent on the part of Brazda Bros., then, in such case, plaintiffs cannot recover in this action, and they will find for the defendants. Sonnenschein v. Bartels. "5. The court instructs the jury that if they believe from the evidence that Brazda Bros. sold and conveyed to plaintiffs the property in controversy, and that in said sale it was the intent of Brazda Bros. to hinder, delay, and defraud their creditors, and that plaintiffs participated in such fraudulent purpose, or had knowledge or notice of the same before or at the time of the purchase, then and in that case plaintiffs take no title to property so purchased as against the creditors of Brazda Bros., though the jury may believe from the evidence that they paid full value therefor, and in such case the jury will find for the defendants. "6. A full consideration paid in cash will not protect a purchaser who had notice, actual or constructive, that the vendor was selling to hinder, delay, or defraud his creditors. It is not enough that a vendee is a purchaser for value; he must be an innocent purchaser. "7. The court instructs the jury that if they believe from the evidence that Brazda Bros. were insolvent, or were largely indebted, and that they were being pressed by creditors for payment of their respective claims, and that while so indebted they made sale of all their property to plaintiffs, and that such sale had the effect to defeat the creditors. of Brazda Bros. in the collection of their debts, and that such indebtedness of Brazda Bros. was known to plaintiffs before purchasing the property, then these facts, if shown in the evidence, are circumstances to be considered by the jury as showing a fraudulent intent in the sale of such property. "8. The court instructs the jury that fraud in the sale and conveyance of property is often difficult to detect and hard to prove, and for this reason the law permits fraudulent purpose and intent to be shown by proof of the existence of other facts and circumstances, surrounding or connected with the fraudulent act, that tend to show a dishonest purpose; and in this case, if the jury believe from the evidence that the plaintiffs were not merchants or deal Sonnenschein v. Bartels. ers in the character of goods in controversy, and that they purchased all the property in controversy from the Brazda Bros. at and for a price less than its real value; that prior to said purchase no invoice of said property had been taken whereby the quantity and value of the same could be ascertained; that at the time of such purchase Brazda Bros. were insolvent and largely indebted; that the remainder of the property of the Brazda Bros. and the separate property of Anton Brazda and Dominik Brazda, who composed said firm, were so incumbered as not to be available for the payment of their creditors; that such sale would have the effect to hinder, delay, or defeat the creditors of said Brazda Bros. in the collection of their debts; that plaintiffs knew of such indebtedness of Brazda Bros., or could have known it by ordinary inquiry; that said sale was secretly and hurriedly made and consummated in the nighttime; that immediately after the plaintiffs came into possession of said stock of goods they proceeded to advertise and sell said goods at cost and less than costs, and did sell a large amount of said goods at original costs and at less than original cost price, and continued to do so until stopped by the service of a writ of attachment upon them at suit of the defendants in this action; that the plaintiffs did not intend to sell said goods and run a mercantile business after the manner and custom of merchants, but expected to make money out of the goods by closing out the entire stock at cost and less than costs, at private sale or by auction; then these and similar facts and circumstances, if shown in evidence to the jury, are to be considered by them in determining whether the sale of the property in controversy by Brazda Bros. was fraudulent or not." These instructions were applicable to the evidence before the jury. That they stated the law correctly, see the following authorities: Gollober v. Martin, 33 Kan., 252; Strauss v. Kanert, 56 Ill., 254; Purkitt v. Polack, 17 Cal., 327; Holcombe v. Ehrmantraut, 49 N. W. Rep. [Minn.], Sonnenschein v. Bartels. 191; Beels v. Flynn, 28 Neb., 575; Tootle v. Dunn, 6 Id., 93; Knower v. Cadden Clothing Co., 57 Conn., 202; Bollman v. Lucas, 22 Neb., 796; Blum v. Simpson, 71 Tex., 628; Cox v. Cox, 39 Kan., 121. The plaintiffs in error, in their motion for a new trial, assigned, as one of the reasons therefor, misconduct of the jury and the defendants. It is here claimed that the evidence used on the hearing of the motion for a new trial "showed that some of the jurors were tampered with during the trial, being treated with whiskey and cigars by some of the defendants." We cannot agree to the conclusion deduced by the eminent counsel from the facts stated in the affidavits. We are of the opinion that these affidavits failed to show that any juryman was tampered with by any one, and they fail to show that any juryman was treated with whiskey or other drink or cigars by any of the defendants or their counsel. Nor do these affidavits show any such misconduct on the part of the defendants or any of them, or of their counsel, as would have justified the setting aside of this verdict. "Upon a motion to set aside the verdict of a jury in which questions of fact are involved, the court hearing the motion becomes the judge of such questions of fact, and his decision thereon must be final, unless clearly and manifestly wrong." (Sang v. Beers, 20 Neb., 365.) The judgment of the district court was right, and is in all things THE other commissioners concur. AFFIRMED. |