Block v. Darling

Darling, the defendant in error, brought this action against the plaintiffs in error, partners doing business under the name of Elias Block & Sons, to recover the sum of $7,144.37 for and on account of the sum of $5,636, alleged to have been deposited with them by plaintiff, and accepted and received by defendants, to be paid to him on his order, and for certain articles of personal property sold and delivered by him to them at their special instance and request, particulars of which are set out in an account filed with the petition, and for each and of all of which, it is averred, the defendants promised to pay, but no part of which had been paid except the sum of $3,103, leaving a balance due of $4,041.37, for which amount, with interest, judgment was asked.

The defendants filed an answer and counter-claim, in the first paragraph of which they deny being indebted to the plaintiff in any sum whatever on account of the matters, or any of them, set forth in the petition. They allege that on the 8h o f March, 1882, they purchased from him a distillery and premises known as the 'A. W. Darling Distillery,' including certain merchandise and chattels then on the premises, and being used in the operation of the distillery and the distillery business; also, the good-will, brands, trade-marks, trade-names, and other tokens connected with and belonging to such business and distillery, and certain whiskies made at the distillery, the price of the whole being $20,450.82; that the merchandise and chattels so bought by them constituted part of the personal property mentioned in the petition, and were purchased by him at agreed prices, aggregating $1,079.60; and that said sum of $20,450.82 was then and there paid to the plaintiff, except $5,636. In respect to the latter sum the answer alleged that 'the plaintiff was then and there, and still is, largely indebted to others, and wholly insolvent, and intending and designing to cheat and defraud his other creditors, and thereto to assert to them that he had been fully paid all of said purchase money, he then and there requested these defendants to retain said balance as a deposit, and thereupon the same was paid by these defendants to plaintiff, and by him immediately returned to those defendants; and that this is the same transaction mentioned in the petition as a deposit.'

The second paragraph asserted a counter-claim against the plaintiff for the sum of $9,000, for which the defendants asked judgment. The counter-claim arose out of alleged misrepresentations and breach of warranty by the plaintiff in respect to certain whiskies then on hand and made at his distillery, which the defendants had purchased with the distillery; such whiskies, it was alleged, being falsely and fraudnlently represented by the plaintiff to be sound and merchantable, and not made of rotten or musty material, and the purchase of them, as well as the distillery, constituting a part of the transaction out of which the demands of the plaintiff arose.

After the issues were fully made up-the burden, according to the pleadings, being upon the plaintiff to establish his demand, and upon the defendants to prove their counter-claim-there was a trial before a jury, resulting, December 22, 1886, in a verdict in favor of the plaintiff for '$3,938.40, with legal interest from March 11, 1882.' On the same day, a judgment in conformity with the verdict having been entered, the defendants moved for a new trial upon various grounds. Subsequently, December 24, 1886, the plaintiff moved the court to allow him to remit $100 of the judgment. This motion was disposed of on the day the defendants tendered their bill of exceptions,-January 17, 1887,-the court ordering that motion be granted, the defendants being present by counsel, and not objecting.

The bill of exceptions shows that certain letters received by the plaintiff through the mail from the defendants were admitted in evidence against their objection, and that an exception was taken to the action of the court. It also shows that the defendants offered testimony conducing to show that the debt of the defendants to plaintiff for unpaid purchase money on the transaction in controversy was changed in form to a deposit with defendants, for plaintiff's benefit, under the assumed name of Charles Adams, and that such change was at the plaintiff's instance, and for the purpose of concealing that indebtedness from his creditors, and with intent to defraud them. This testimony was excluded, and to this action of the court an exception was taken.

The bill of exceptions shows no other exceptions. It contains all the evidence introduced 'bearing upon the exceptions to the charge.' The charge was very full, concluding: 'It is the duty of this court to tell you that the defendants have not made out any case for damages. You will therefore retire to consider the verdict, and return what you find to be the balance due to the plaintiff, allowing him interest or not, as you may see proper.'

The defendats, at the close of the charge, 'excepted to all and each part of the foregoing charge and instructions, and the same was all the charge or instruction given by the court.'

T. F. Hallam, for plaintiffs in error.

O. B. Hallam, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.