Shauer v. Alterton

Statement by Mr. Justice HARLAN:

This action was brought by the plaintiff in error in one of the courts of the territory of Dakota to recover damages for the alleged unlawful taking by the defendant, Alterton, of a certain stock of merchandise in a storehouse that had been occupied by Louis S. Shauer in the city of Mitchell, in that territory. The defendant justified the taking under attachments in favor of creditors of Louis S. Shauer, which came to his hands as sheriff of the county. There was a verdict in favor of the defendant, and, a new trial having been denied, judgment was entered in his favor. That judgment was affirmed by the supreme court of the territory, and the writ of error in this case was directed to the supreme court of the state of South Dakota, as the successor of the supreme court of the territory of Dakota, by virtue of the act of February 22, 1889, c. 180, § 22, (25 Stat. 683.)

The bill of exceptions shows that there was evidence tending to show the following facts:

In September, 1885, Louis S. Shauer, owner of the merchandise attached, was indebted to his brother, Gustave G. Shauer, a druggist of Chicago, in the sum of $8,000 and more, for moneys loaned and advanced. While Louis was in Chicago, about September 1, 1885, for the purpose of making fall purchases, Gustave informed him of his intention to buy another drug store, and that he would need the sum Louis owed him. The latter expressed his expectation of being able soon to pay one-half of the amount due from him, and, after returning to Mitchell, remitted a smaller sum than his brother expected. Gustave, having written for more, and receiving only $200, went to Mitchell, arriving there on Sunday, December 13, 1885. From a conversation with Louis during the evening after his arrival at Mitchell, Gustave concluded that Louis was financially embarrassed, and owed more than he could pay. The following morning he urged his brother to secure him by mortgage on his stock. Louis at first consented to do this, but at a later hour of the same day he declined to give a mortgage. Gustave then proposed that Louis sell him goods to the amount of his debt. This Louis refused to do unless Gustave would take the entire stock at fair market prices. After consultation it was agreed that Gustave should take Louis' stock at 85 cents on the dollar, invoiced at wholesale prices, and, after deducting Louis' debt to him of $6,788, pay $2,100 in cash, and give his notes for the balance. They commenced, that afternoon, the taking of an inventory, and were so engaged for a day and a half. The inventory was taken publicly, the storeroom being open while the work was progressing. About 10 or 11 o'clock in the forenoon of December 16, 1885, Louis made a bill of sale to Gustave, embracing the goods here in controversy. After its execution, the parties proceeded to the store in which the goods were contained, when Gustave delivered to Louis his check for $2,100 and his two notes of $1,247 each, surrendering the note he held against his brother. Louis delivered to Gustave the bill of sale and the keys of the store. The transfer was completed about noon of that day.

Immediately after the transfer, Gustave opened an account with the First National Bank of Mitchell, and went with Louis to an insurance office, where the insurance carried by the latter on the stock was assigned to Gustave. They then went to dinner. That afternoon they caused three other policies of insurance to be changed from Louis to Gustave, after which the latter returned alone to the store, and directed Louis' clerk to go to dinner. Having returned to the store, and being informed by Gustave of his purchase of the stock, the clerk entered the service of the latter. By direction of Gustave he changed the 'show' in front of the store. During the most of that afternoon Gustave remained in the storeroom, and waited personally upon customers. He prepared, and left for publication, at the office of the Republican and Mail, newspapers published at Mitchell, notices announcing the transfer from Louis to himself, and asking for the patronage of the public. These notices appeared in the next issue of each of those newspapers. He also ordered letter heads to be printed, and a sign for the store with his name painted on it. He filed the bill of sale for record in the office of the register of deeds. During the afternoon of the day of the transfer, Louis, on one occasion, at the request of Gustave, came to the store to assist in making the sale of a trunk, with the price of which Gustave was not familiar.

Louis applied the check of $2,100 and the two notes of $1,247 each in payment of demands held against him by several of his relatives.

The goods in controversy were seized by the sheriff under the attachments about 10 o'clock in the evening of December 16, 1885. Louis was present in the store at the time.

The bill of exceptions shows that the plaintiff read in evidence the deposition of H. H. Nash, cashier of the Chicago National Bank, relating to three checks of $650, $270.87, and $2,100, respectively, which were in evidence in the case as exhibits, and showed upon their faces that they had been drawn by G. G. Shauer upon the Chicago National Bank in favor of Louis S. Shauer. The first two checks named, as alleged by the plaintiff, tended to show the payment of money by the plaintiff to his brother Louis, makng a part of the indebtedness in question, and the third check of $2,100 was the check the plaintiff claims to have passed to Louis in part consideration of the alleged transfer. On the objection of defendant the court refused, upon the ground of its being incompetent, to allow the plaintiff to read the answer of the deponent in response to the following question: 'You may state whether or not that check has all the appearance of having passed through the bank in the ordinary course of business.' The objection to this question was sustained upon the ground that it appeared in evidence that the check had passed through other banks than that of which witness was cashier, and it did not appear that the witness was familiar with the course of business of such other banks, or their stamp or indorsement thereon, so as to permit him to answer this general question.

To the refusal of the court to allow the answer to be read, the plaintiff duly excepted.

The plaintiff further offered to read in evidence other parts of the deposition of Nash, showing what the marks and indorsements on the back of each of the checks indicated, how such marks were made, and by whom. The court refused to allow those parts of the deposition to be read, and to this refusal the plaintiff duly excepted. The objection to this offer was sustained upon the same ground as that last stated.

It appeared that the deposition was taken in Chicago, at the taking of which both parties appeared by counsel, and that Nash was cross-examined at length by counsel for defendant as to his familiarity with the business of the Chicago National Bank, of which he was cashier.

The defendant was allowed, under objection by plaintiff, to which ruling the plaintiff duly excepted, to read in evidence a confidential business statement made by Louis, in January, 1885, to Bradstreet's Commercial Agency at Sioux City, Iowa. This statement, the bill of exceptions states, concealed the alleged indebtedness of Louis to his brother, the plaintiff, which existed at that time. It was not shown that this statement was brought to the knowledge of the plaintiff nor to any of the creditors of Louis. All of the indebtedness against Louis upon which defendant relies 'was created at and subsequent to September, 1885.'

Neither party asked a peremptory instruction to find in his behalf. The plaintiff asked ten instructions, of which only three were given, the plaintiff excepting to the refusal of the court to give each of the others. Six instructions were given at the instance of the defendant, to the giving of each of which the plaintiff excepted. In addition, the court charged the jury, the plaintiff excepting to six different parts of the charge.

H. W. Magee, for plaintiff in error.

[Argument of Counsel from pages 612-615 intentionally omitted]

H. Beach, for defendant in error.

Mr. Justice HARLAN, after stating the facts as above reported, delivered the opinion of the court.