Goetz v. Hanchett (40 Ill. App. 206, 1891)

Moran, P. J.

This was an action of replevin brought by appellants against Hanchett, as sheriff, to recover certain goods levied upon by said sheriff by virtue of a number of attachment writs against the firm of Strouse & Meyer. Appellants had purchased’ a stock of goods from said Strouse & Meyer, who were shown to have been insolvent at the time of said sale, and the ground on which the creditors in the attachment suits claimed the right to hold the goods levied on, is that said sale was made by Strouse & Mever with the intent on their part to hinder, delay and defraud their creditors, and that said Goetz & Biess knew of such insolvency and such fraudulent intent when they purchased the goods, or were chargeable with such knowledge from facts and circumstances sufficient to put them on inquiry.

The case was tried before a jury and a verdict rendered against appellants, under instructions, of which, so far as regards the questions of the insolvency and fraudulent intent of Strouse & Meyer at the time of sale to appellants, and appellants’ knowledge thereof, no complaint is made by counsel on this appeal.

The contention is that the verdict of the jury finding the sale fraudulent, is clearly against the weight of the evidence, and should not be allowed to stand

The case was reviewed once before in this court, and is reported in 25 Ill. App. 445, where the transactions of the parties and the circumstances connected with them are stated somewhat at length. The evidence in this record on the question of the fraud in the sale and appellants’ knowledge thereof and participation therein, is substantially the same as was then considered. Upon those questions, Mr. Justice Bailey, speaking for the court, then said: “The evidence of a fraudulent intent on the part of Strouse & Meyer, was sufficient, we think, to have warranted the jury in finding in favor of the attaching creditors on that issue. But that fact alone was clearly Insufficient to entitle sard creditors to a verdict. It was necessary that they should also succeed upon the issue of notice of such intent to Goetz & Company. We can not doubt that the circumstances disclosed by the evidence tending to charge Goetz & Company with such notice were sufficient to fairly present a question for the consideration of the jury.”

The case was then reversed for error in instructions in submitting the question of notice of the fraud to the jury. The same conflict of evidence was again presented on this issue, and the jury, under correct instructions, have found against appellants, and a careful consideration of the record leads us to the conclusion that as to this particular issue the finding is clearly supported, and is not, as appellants contend, against the weight of evidence. The condition of the evidence as to said issue is such that a verdict either way under correct instructions could not properly be disturbed by a reviewing court.

We must, therefore, deny appellants’ contentions as to this point, and rest upon the verdict as settling that Strouse & Meyer made the sale of their stock of merchandise to appellants with the fraudulent intent of hindering and delaying their creditors, and that appellants had knowledge of that intent and participated in it in making the purchase.

It is further contended by appellants, that even if the sale be considered fraudulent, the verdict can hot be supported as to fifty-eight pieces of silk winch it is claimed had been purchased by appellants from Marshall Field & Co. a few days prior to the levy of the attachment writs, and which had never been the property of Strouse & Meyer.

Upon this, point the court gave the following instruction, of which appellants complain :

“ Even though the jury may believe from the evidence that Goetz & Co. purchased some silks from Field & Company, yet if the jury further believe from the evidence that Goetz & Co. fraudulently mixed such silks with a much larger quantity of silks bought by them from Strouse & Meyer, so that they could not be distinguished from each other, if the jury believe from the evidence they could not be so distinguished, and that the deputy sheriff Burk levied on said silks in the presence of the plaintiffs, Goetz & Riess, as the property purchased by Goetz & Riess from Strouse & Meyer, if the jury so believe from the evidence, and that the plaintiffs knew said fact and did not attempt to distinguish the Field goods from the others, nor notify the deputy sheriff that any of the same were purchased from Field & Company, but permitted him to take the same supposing they were the goods purchased by the plaintiffs from Strouse & Meyer, then the jury are instructed that they should, in their verdict, treat said goods purchased from Field & Company the same as if they were a part of the goods purchased by the plaintiffs from Strouse & Meyer.”

It is contended by appellants that there is no evidence from which the jury could find that they had fraudulently mixed the silks purchased from Field with the silks purchased from Strouse