an obligation already due from him to them; and whether he shall be compelled to pay the whole or any part of the note is of no interest to them. No claim for contribution can arise in favor of respondent and against the witnesses, for the reason that, before the note was given, respondent had received from the witnesses the full amount of any consideration upon which such claim of contribution can be based. We are unable to see that the witnesses have any interest in the controversy, within the meaning of the statute, and therefore think the court did not err in receiving their testimony.

The next error assigned is that evidence was admitted to prove that a rebate of taxes was made. It is insisted that the note referred to a lawful rebate, and that proof of an order of the county commissioners or city council was not evidence of a lawful rebate. It was the view of the superior court that inasmuch as the deceased accepted the benefit of such rebate or reduction, and settled the taxes on that basis, receiving receipts purporting to be in full cancellation of the whole tax, without raising objection to the manner in which the reduction was obtained until after the maturity of the note, his executor cannot now attack the manner of such reduction in this action. It was further the view of the court that when respondent had shown that the treasurer had accepted from the deceased a reduced sum for the taxes, and had receipted in full for the whole tax, which settlement was accepted and acted upon by the deceased, the burden then devolved upon appellant to show that the treasurer was not legally authorized to accept such reduced sum in cancellation of the whole tax. We think, in any event, the latter view is correct, and that in the introduction of respondent's case evidence as to the manner of the reduction was immaterial, when it was shown that a reduction was in fact made, which was accepted and acted upon by the deceased. The admission of respondent's testimony in relation to the manner of the reduction was therefore no more than harmless error.

It is last assigned as error that the court denied the motions for nonsuit and for new trial, and rendered judgment for respondent. We think the evidence was sufficient to support the court's finding that the meaning of the language used in the note was to secure said Hertges for the excess of liabilities assumed by him over the assets transferred to him in his deal with the Bank of Montesano, and that, in case a rebate or reduction of personal property taxes equal to or in excess of $240 was obtained, the note was to be returned to the maker; that, if a less amount of reduction was obtained, such less amount should be credited upon the note, and respondent should be liable for the difference, The evidence showed a settlement of the taxes for a sum less than the original amount by more than $240. The court's conclusion, therefore, was that there is no longer any

| obligation existing upon the note, and that respondent is entitled to its possession. It is appellant's contention that respondent remained obligated upon the note as long as any portion of the tax was not rebated or paid, provided that he should not be liable for more than the amount stated in the note. Respondent's evidence was, however, to the contrary, and the motion for nonsuit was properly denied. The court also found the preponderance of the evidence to be against appellant's contention, and we think the finding is sustained by the evidence as it appears in the record.

The questions involved in the motion for new trial have already been discussed. We believe no material error was committed, and the judgment is affirmed.

REAVIS, C. J., and DUNBAR, FULLERTON, ANDERS, MOUNT, and WHITE, JJ.,

concur.

(29 Wash. 94) GOODYEAR RUBBER CO. v. SCHREIBER et al.

(Supreme Court of Washington. July 14, 1902.) FRAUDULENT REPRESENTATION IN SALEGROUND FOR REPLEVIN-TRUSTEE IN BANKRUPTCY-RIGHT TO GOODS-EVIDENCE-SUFFICIENCY JURISDICTIONAL AMOUNT APPEAL.

1. Where the total value of the property sought to be recovered in replevin exceeded the minimum fixed by the constitution, the supreme court has jurisdiction of an appeal therein, though the value of separate portions of the property adjudged to intervening claimants may not have equaled the minimum.

2. Evidence held suficient to warrant a finding in replevin that the goods were purchased under fraudulent representations, with a preconceived intent of the purchaser not to pay for them, but with intent to defraud the seller; and it was error to direct a verdict for the purchaser.

3. A trustee in bankruptcy in relation to the bankrupt's goods does not stand as a purchaser for value without notice, having no higher right thereto than the bankrupt, and replevin may be maintained against him for goods fraudulently obtained by the bankrupt.

4. Where a sale of goods had been rescinded and the goods seized in replevin prior to the appointment of a trustee in bankruptcy, such trustee could not retain the property, if it had been obtained by the fraud of the bankrupt.

5. That goods were purchased by retailers from another retail merchant, who sometimes did a jobbing business, for $3.000, which goods were originally invoiced to such retailer for $4.000. and were removed from the place after 6 o'clock in the evening, and that when the goods were replevied by the wholesalers a controversy as to the right of the officer to take them arose, do not constitute badges of fraud sufficient to require submission to the jury of the question of such retailers' knowledge of the fraud of the original purchaser of the goods.

6. In replevin for goods alleged to have been sold defendant on false representations as to his credit, it was error to refuse to permit defendant's clerk to testify as to the falsity of a written statement of his accounts sent by de

13. See Bankruptcy, vol. 6, Cent. Dig. § 219.

fendant to plaintiff, and to show by plaintiff's credit man that credit was extended on such statement.

Appeal from superior court, Spokane county; Leander H. Prather, Judge.

Action by the Goodyear Rubber Company, a corporation, against Charles Schreiber, C. J. Kemp and H. H. Hebert, partners doing business as Kemp & Hebert, and Paul J. Strobach, trustee in bankruptcy of Charles Schreiber, bankrupt. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed as to Kemp & Hebert, and reversed as to other respondents.

Crow & Williams, for appellant. Samuel R. Stern, for respondent Strobach. Danson & Huneke, for respondents Kemp & Hebert.

FULLERTON, J. This was an action of replevin brought by the appellant against the respondent Schreiber to recover the possession of certain merchandise theretofore sold by the appellant to Schreiber, who was then engaged in the shoe business at Spokane, in this state. In its complaint the plaintiff alleged that, prior to the time the goods were sold to Schreiber, Schreiber represented to the appellant that he was in good financial standing, was perfectly solvent, able to meet his bills as they matured, and had assets greatly in excess of his liabilities, when in truth and in fact he was not in good financial standing, and was not able to meet his bills as they matured or at all; that his assets were much less, and his indebtedness much greater, than he stated them to be, and that he was at the time the representations were made and at the time of sale wholly insolvent; that such representations were, made fraudulently and willfully, and for the purpose of deceiving the appellant, and but for which representations the sale would not have been made; that the appellant, upon first learning the facts, elected to rescind the sale and to recover the possession of the goods. There was a second cause of action for goods sold by C. R. Winslow & Co. to Schreiber, containing the same allegations as to fraud as the first, with the further allegation that the claim for the goods had been assigned to the appellant. At the time of the commencement of the action a writ of replevin was sued out, under which the sheriff seized the goods described in the complaint; taking a part of them from the possession of Schreiber, and a part (the major portion) from the possession of the respondents Kemp & Hebert. Shortly after the commencement of the action other creditors of Schreiber filed in the proper court a petition in bankruptcy, upon which Schreiber was adjudged a bankrupt, and the respondent Strobach was appointed trustee in bankruptcy of his estate. Kemp & Hebert and Strobach were afterwards, with leave of court, made parties defendant, and permitted to answer the complaint. Kemp & Hebert answered, denying the allegations of fraud, and pleading affirma

tively, in substance, that the goods taken from their possession under the writ, together with other goods, had theretofore been pledged by Schreiber to one Stout to secure an actual loan of $2,500 made by Stout to Schreiber; that after the loan became due, and for the purpose of paying the same, Stout and Schreiber, on the one part, and Kemp & Hebert, on the other, entered into an agreement by the terms of which Kemp & Hebert purchased the goods, taking the same from the possession of Stout, and paying therefor nearly $3,000, $2,500 of which went to Stout, and the balance to Schreiber. They further allege that at such time they had no knowledge that the goods had not been paid for, or that the appellant, or C. R. Winslow & Co., made claim to the goods, or that any fraud had been committed by Schreiber in obtaining possession of the same, and that the price paid was the reasonable value of the goods. The answer of Strobach, upon which the cause went to trial, consisted of a general denial of the allegations of the complaint. At the trial, on the conclusion of the appellant's case, the respondents severally interposed the statutory challenge to the legal sufficiency of the evidence, whereupon the court withdrew the case from the consideration of the jury, and directed judgment to be entered for the respondents. Of the goods seized under the writ of replevin, those taken from Kemp & Hebert were returned to them on a redelivery bond given at the time of their appearance in the action. Those taken from the store of Schreiber were delivered to the appellant, who had possession of them at the time of the entry of the judgment. The judgment in favor of Schreiber and Kemp & Hebert was to the effect that the appellant take nothing by its action and for costs. The judgment in favor of Strobach was that the appellant redeliver the goods to him, or, in case redelivery could not be had, that he have judgment for their value, which value, the judgment recites, the parties had agreed to be $184.22.

Based upon the contention that the value of the property in controversy between the appellant and himself is less than $200, the respondent Strobach moves to dismiss the appeal on the ground that this court is without jurisdiction. But the total value of the property which the appellant sought to recover from Schreiber, as shown by the complaint and evidence, greatly exceeded the minimum fixed by the constitution. This value determines the jurisdiction of the court, not the value of the separate portions of the property the trial court may have adjudged to intervening claimants. The motion is denied.

The principal contention of the appellant is that the court erred in holding that the evidence introduced on its behalf was insufficient to justify a verdict in its favor. As against the respondents Schreiber and Strobach, we think the contention is well taken. There was evidence tending to show that

Schreiber made false statements as to his financial condition for the purpose of procuring credit of the appellant; that he was at that time and at the time he received the goods selling his stock at a sacrifice,-losing, as he himself states, by that means, some $8,500 between the date of the order and the time he was adjudged a bankrupt; that he "gambled heavily" during the same period; that he never opened the boxes in which the goods were shipped to him, but shortly after their receipt pledged a portion of them, with other goods, to Stout, to secure an advancement made to him by Stout, delivering the goods into Stout's possession. Other circumstances were also shown hardly consistent with honest conduct, sufficient, when taken altogether, to well warrant the jury in finding that the gods were purchased under fraudulent representations, with a preconceived intent on the part of Schreiber not to pay for them, but with the intent to cheat and defraud the appellant. Under this state of facts, the appellant could rescind the sale, and recover from Schreiber, or any one holding under him, not a purchaser for value and without notice, the goods so fraudulently obtained. Strobach does not stand in the relation of a purchaser for value without notice. He stands in a representative capacity, and could have no higher right to the goods than Schreiber had. More than this, the sale had been rescinded and the goods seized prior to the time he acquired any right to the property of Schreiber at all. He could not, therefore, retain the property, if it had been obtained by Schreiber through fraud practiced upon the appellant; and whether there was such fraud practiced should have been subImitted to the jury.

As to Kemp & Hebert the case stands differently. The evidence shows that they obtained the goods held by them in the manner stated in their answer. It was also shown that Schreiber occasionally did some jobbing trade, that his store was a going concern at the time these respondents acquired the goods, and that there was nothing in the general appearances that should have put chem upon inquiry, or that indicated that there had been any change in his affairs. Indeed, a traveling representative of the appellant, who resided in Spokane, and who testified that it was a part of his duty to observe and report upon the conduct of the customers of his house, said that he was frequently in Spokane and in the store of Schreiber during the months just preceding the time this action was commenced, and that he neither saw nor heard anything that would indicate that Schreiber was not doing a legitimate and fairly prosperous business. But it does appear that the goods purchased by Kemp & Hebert, and for which they paid something less than $3,000, cost, according to the invoices, about $4,000; that the sale was consummated and the goods turned over in the evening, commencing about 6 o'clock; and

that there was some controversy at the time the levy of the writ was made between Kemp & Hebert and the persons representing the appellant, concerning the goods,—all of which, the appellant argues, constitute badges of fraud sufficient to require the submission of the question to the jury. But a careful examination of this branch of the evidence fails to convince us that there was anything in these circumstances tending to show a want of good faith on the part of the purchasers. While it does appear that the goods which came from the appellant's house were new, and that this price would indicate a rather heavy discount for that class of goods, yet the invoice price of these goods was but little more than one-third of the invoice price of the total amount purchased, and the condition and character of the remainder was not shown. The price was made as a whole, and, in the absence of a showing of the character of the whole, it will not be presumed that the price paid was not a reasonable and fair price for the goods as a whole. There was nothing in the time of the sale that makes its character suspicious. On the contrary, it appears that the parties selected the most convenient time. Aside from this, the transaction was had in the presence of clerks of both parties and the legal representative of Stout, -certainly not the usual method where secrecy is intended or desired. While there is much in the record as to what occurred when the officer came to the store of Kemp & Hebert with the replevin writ, we gather from it all that the controversy was over the right of the officer to seize the goods. It does appear that the member of the firm of Kemp & Hebert who was present on that occasion protested stoutly against the seizure, but we fail to find in this any indication that either e or the other member of his firm had notice or knowledge at the time they purchased the goods that Schreiber had fraudulently obtained them from the appellant.

The appellant complains, and we think justly, that the court too narrowly restricted the testimony on the question of the fraud of Schreiber. It was shown that Schreiber, for the purpose of procuring credit of the appellant, had made and forwarded them a written statement purporting to show his financial condition, on which he had given a list of his creditors, with the amounts due them, respectively, against some of which he had written the word "Paid." The court refused to permit the clerk of Schreiber to answer whether or not certain of these accounts marked as paid had in fact been paid, and whether or not there were a number of other creditors whose names were not on the list. court also refused to permit the agent of the appellant who had charge of its credit business, and power to make and control the sales of its goods, to answer whether or not this sale was made in reliance upon the truth of the matters contained in the statement, and whether it would have been made but for the

The

representations made in the statement. These questions were proper, and answers to them should have been permitted. Other matters assigned as error will not recur on the retrial of the cause, and no mention of them need be made here.

The judgment, in so far as it affects the respondents Kemp & Hebert, is affirmed. As to the other respondents it is reversed, and a new trial ordered.

REAVIS, C. J., and HADLEY, WHITE, ANDERS, and MOUNT, JJ., concur.

(41 Or. 239)

ROBSON v. HAMILTON et al. (Supreme Court of Oregon. July 21, 1902.) VENDOR AND PURCHASER FRAUD EVIDENCE-INTENT-UNLAWFUL TRANSACTION-DISPOSITION OF APPEAL.

1. A letter from a debtor to a creditor: "If you get in and sue me, it will take the whole place to pay the lawyers with, and you and I will have nothing. You can just do as you please. Either sue me, and be sure of getting nothing, or you can just wait on me, and I will get it when I can," and others of similar import, indicated that the execution of a deed 21 days later by the debtor of her realty was to put it beyond the reach of her creditors, and were admissible, in an action to set aside the conveyance, to establish such fraudulent intent.

2. In an action to set aside a deed as in fraud of creditors, the grantor's declarations to the notary at the time the conveyance was executed as to intent were admissible as res gestæ.

3. Where a daughter conveyed realty to her parents to put it beyond the reach of creditors, the law presumes that they were aware of her fraudulent intent.

4. Plaintiff conveyed her realty to defendant in order that she might take her husband and son out of the state to avoid their being prosecuted for a felony. Defendant deeded the same to her parents to put it beyond the reach of her creditors. Plaintiff thereafter sued on the notes given for the purchase price, and recovered judgment. Held, that plaintiff could have the conveyance made by defendant set aside, in order to enforce her judgment, as it was not necessary for her, in opening her case, to show that she had violated the law; nor did she need the aid of the original transaction to maintain her action.

5. Where, in an equitable action, defendants did not introduce evidence because the court excluded competent evidence offered by plaintiff, the cause will be remanded, on appeal, instead of entering final judgment for plaintiff.

Appeal from circuit court, Linn county; R. P. Boise, Judge.

Action by Elizabeth Robson against Juliett Hamilton and others. From a decree for defendants, plaintiff appeals. Reversed.

This is a suit to set aside a deed to real property, and to subject the premises to the satisfaction of a judgment. It is alleged in the complaint, in substance: That about October 1, 1894, the defendant Juliett Hamilton and one Michael Berrigan, to evidence a part of the purchase price of the real property hereinafter described, executed to plaintiff their four promissory notes, of $300 each,

2. See Evidence, vol. 20, Cent. Dig. § 322; Fraudulent Conveyances, vol. 24, Cent. Dig. §§ 826, 839.

payable in one, two, three, and four years, respectively, from said date, with interest at 5 per cent. per annum. The three latter not having been paid when due, or at all, she commenced an action in the circuit court for Liun county to recover thereon; and a tract of land consisting of the N. W. and the W. 1⁄2 of the N. E. 4 of section 5, in township 13 S. of range 1 W. of the Willamette meridian, in said county, was duly attached therein, and on October 23, 1900, a judgment was rendered in said action against Mrs. Hamilton for the sum demanded, and said premises were ordered sold, and an execution, having been issued thereon, was returned nulla bona. That on October 5, 1896, Mrs. Hamilton, being the owner of said land, which was then and now of the value of $1,400, and of certain personal property of the value of $400, and being deeply indebted and unable to pay her creditors, for the purpose of hindering and delaying whom, and without any consideration therefor, executed to her mother, the defendant Mary M. Jones, a pretended deed of said premises, which has been duly recorded. That about that time Mrs. Jones advanced to her daughter Mrs. Hamilton the sum of $400, which was afterwards repaid by the sale of personal property belonging to the latter. That Mrs. Jones and her husband, the defendant John H. Jones, have at all times known that the pretended transfer by Mrs. Hamilton rendered her insolvent, and that she made said deed to her mother, to hinder, delay, and defraud her creditors. Mrs. Hamilton, answering separately, denied that the deed was made to hinder, delay, or defraud her creditors, and alleged that at the time she signed it her father and mother well knew of her indebtedness, and of her probable inability to pay the same; that said deed was made in pursuance of an agreement whereby her parents were to keep and educate her children, and to permit her to make her home with them whenever she so desired, in consideration of which they were to have the use of all that part of said land that should remain after conveying enough of it to plaintiff to pay the sum due her; that, in order more conveniently to carry out the terms of their agreement, she signed and acknowledged the deed to her mother, and placed it in her trunk until she obtained security for the faithful performance of their contract, but without her knowledge or consent it was taken therefrom and placed on record. The defendants Mary M. and John H. Jones, answering jointly, denied the material allegations of the complaint, and alleged that the plaintiff and their daughter had entered into a fraudulent agreement, in pursuance of which said judgment was rendered against her, with the understanding that she would not be required to pay any part thereof; that the deed was executed by Mrs. Hamilton to her mother in good faith and for a valuable consideration, and accepted by the latter without any knowledge or notice of Mrs. Hamilton's pre

existing indebtedness; that in May, 1896, Mrs. Hamilton executed to said defendants a note for the sum of $1,000, secured by a mortgage on said land, the consideration for the note being the sum of $400 in money advanced to her, and the settlement of a claim for the board and care of her children, and for the time employed and expense incurred in making a journey from Illinois to Oregon at Mrs. Hamilton's request, which board, care, expense, and time were reasonably worth the sum of $600; that about June 18, 1896, Mrs. Hamilton delivered to said defendant 13 head of cattle, worth $10 each, the value of which was to be credited on her mortgage note, which could not then be found, but was afterwards discovered in her possession; that in consideration of the cancellation of said mortgage, and the receipt of a cow and a cook stove, and the settlement of said account, and for the future support of Mrs. Hamilton's children, she executed said deed, the consideration for which was paid without notice or knowledge of her pre-existing indebtedness; that since securing the deed, and without notice of any claim upon plaintiff's part, said defendants have made permanent improvements upon said land of the value of $446; and that the real property at the time Mrs. Hamilton's deed was executed was of no greater value than $500, and now worth not more than $946. The reply put in issue the allegations of new matter in the answer of Mr. and Mrs. Jones, and, at the trial which followed, the plaintiff's counsel introduced their testimony and rested, whereupon the court dismissed the suit, and plaintiff appeals.

H. C. Watson, for appellant. P. R. Kelly, for respondents.

MOORE, C. J. (after stating the facts). The plaintiff's deposition offered in evidence is to the effect that in the summer of 1894 she was the owner of said land, upon which she was then living, and having a son held in the jail of Linn county, Or., awaiting examination upon a charge of larceny, the defendant Juliett Hamilton informed her that her husband and another son were liable to be sent to the penitentiary for crimes committed by them, and suggested that if she would convey said land to her, and leave the state with her husband and the latter son, and not return or permit her residence to become known to her friends in Oregon, the son who was in jail could attribute the theft with which he was charged to the brother who had gone away, and thus escape punishment; and, fearing that her husband and other son might be apprehended, she accepted the advice of Mrs. Hamilton, and in pursuance thereof executed to her a bill of sale of certain personal property, and a deed of said land, receiving therefor the promissory notes hereinbefore described and $250 in cash, with which she went to California, leaving her son in jail, and taking her husband and the other son with her, and

that she did not correspond with any of her relatives until about October, 1896. Certain letters written by Mrs. Hamilton to plaintiff, and properly identified, were attached to the deposition and offered in evidence; but, having been excluded by the court, they were admitted as "evidence offered, excluded, and excepted to," under the rule prescribed therefor. Laws Or. 1893, p. 26. The plaintiff, having resided in California since 1894, was unable to state upon her examination whether Mrs. Jones had any knowledge of her daughter's indebtedness prior to accepting the deed from her. J. O. Wilson, appearing as plaintiff's witness, testified that Mrs. Hamilton, prior to securing the deed of the land, said to him, "If you don't give me away, I'll scare them out and get the place." W. C. Peterson, another witness, testified that, as a notary public, he prepared the deed, and took the acknowledgment of Mrs. Hamilton thereto, conveying the land in question to her mother, and that her father was present when the deed was executed. The witness was thereupon asked to state what was said by Mrs. Hamilton at that time, but, an objec tion having been sustained on the ground that her mother was not present, his answer was received, and marked as "evidence offered, excluded, and excepted to," and is as follows: "She came to my office and made a statement that she owed her father and mother for taking care of her children; that she was in a pressed condition, and wanted to turn the property over to them; that they had had some trouble,-as she put it, she wanted a 'breathing spell.' I reached up and took down a blank from my cases,-a mortgage blank. I presumed she wanted to give a mortgage. And she said, 'No; I want to make a deed, and stop this trouble.'” Before Mrs. Jones can be charged with any participation in the alleged fraud of her daughter, it must appear that Mrs. Hamilton intended, by executing the deed, to place the property beyond the reach of her creditors, with intent to hinder, delay, or defraud them. Her letters to plaintiff tend to show such intention, for in one of them, written 21 days before the deed was executed, she says: "I will get your money if I can. You can fuss at me as much as you please, but you can have no effect on me, as I am a woman of my word. If you get in and sue me, it will take the whole place to pay the lawyers with, and you and I will have nothing. You can just do as you please. Either sue me, and be sure of getting nothing, or you can just wait on me, and I will get it when I can." This letter, and others of similar import, having tended to disclose Mrs. Hamilton's purpose in executing the deed to her mother, were admissible in evidence to establish her fraudulent intent, as a foundation upon which Mrs. Jones' knowledge thereof, if it existed, must have rested; and the court erred in not permitting them to be given in evidence. Mrs. Hamilton's declarations to the notary in her father's presence, made at