RHODES & PETERS vs. BEAMAN & WATERS, 10 La. 363

Bullard,,/., delivered the opinion of the court. This is an action to annul a sale made by the debtors of the plaintiffs, and intervenors, to the defendants, or one of them acting for both, of a stock of goods, which contract is alleged to be in fraud of their rights. The case was submitted to a jury, whose verdict was in favor of the plaintiffs, and being followed by a judgment annulling the contract, and condemning the defendants to pay the value of the goods, the latter appealed. The

article 1979 of the Louisiana Code, declaring contracts fraudulent as to creditors, which are made with the knowledge of the obligee, that the obligor was in failing and insolvent circumstances, and when they give the former an advantage o~ ver other creditors, merely establishes a presumption against such contract $ but it does not exclude other evidence of fraud, or control the principle that every contract may be the object of the revo-catory action, which is made in fraud of the rights of creditors.

Questions, sucli as this case presents, are so peculiarly of the province of juries, that this court will not disturb a verdict, unless manifestly without or against evidence, when the trirtl has been fairly conducted, and the jury does not appear to have been misguided by an erroneous exposition of the law. Much reliance has been placed by the counsel for the appellants, on

article 1979, of the Code, which declares that every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors. It is contended that the defendant, Beaman, was not a creditor, and that he is not shown to have had a knowledge of the failing circumstances of the vendors. We consider this

article as merely establishing a presumption against the contract, whenever it is first shown, that the obligee knew of the discomfiture of the obligor, and when being a creditor he gains an advantage over other creditors. But it does not exclude other evidence of fraud and collusion, and does not control the broad principle established by the Code, that every contract may be an object of the revo-catory action, which was made in fraud of the rights of creditors.

The evidence in the record is sufficient, in our opinion, to justify the jury in finding that the two defendants were concerned in the transaction, from the beginning, and that no such contract was in reality ever entered into, as would appear to have been evidenced by the written bill of sale, set up in the defence, and that the sum of three thousand dollars therein recited, was in fact never paid. It is not necessary to inquire on which party the law imposed the burthen of proof.

The evidence in the record is quite satisfactory, that the bill of sale was simulated, and that the contract, whatever it may have been, w'as not such as by the written evidence adduced, it purported to be. The charge of the court, to the jury on the trial, was excepted to, and our attention has been called to the bill of exceptions. We have attentively examined the charge, and consider it fair, and even favorable to the defendants. The-judge says, “ as to knowledge of Beaman of the insolvency under the decisions of the Supreme Court, I feel bound to say, that it was and is necessary to charge him.

Is that fact proved 1 You will decide on all the evidence. On this I would lay down this rule; if the circumstances in which Beaman stood at the time of the sale, were such as to induce a prudent man to make further inquiry as to the insolvency of Lowe & Co., you may presume and find he had notice.” The whole of this clause taken together, presented the question fairly to the jury, although the latter part of it has the appearance of laying down the rule too broadly.. But in what position does the .evidence place the defendant!

He appears to have been acting for or jointly with an avowed creditor of Lowe & Co., and seeking to avail himself of the advantages of a contract, different from the one alleged, and the effect of which, was to secure payment to at least two creditors of Lowe & Co., and manifestly to the prejudice of the plaintiffs. All these circumstances were left to the jury to decide upon the fairness of the transaction. It is, lastly, urged by the defendants’ counsel, that the court erred in refusing to grant a new trial, on the ground of newly discovered evidence. Both the defendants -filed affidavits.

That of the defendant, Beaman, sets forth, substantially, that he can prove by W. H. Kitchen, that Lowe & Co. offered to sell the stock of goods in question, to several persons, and especially to Kitchen, eight or ten days before the purchase, for three thousand five hundred dollars, which was refused by him after examining the goods. That he can prove by Z. Dowty, the payment of the money to Lowe & Co. He further states, that when he answered the interrogatories,'he had not paid Dr.

Hale, but that he has since paid liim, in compliance with his obligation ; and that the payment was made before the trial of the case. That he had paid W.

Waters, his co-defendant, before the institution of this suit, one thousand dollars, in part payment of the cash advanced by him, to enable the affiant to make the purchase. -where a par-h's “tarogf-state what he cíllse^of'*a cer-goods .St°ckho°v much he paid in whom, and to himself of the plea of newly discovered evidence, with a view to prove payment on a second trial, as he might have proved it in his answers to the interrogatories. eantot^obtairTa new trial, on the ground that he could prove a actio™* or ^con-traot Jv witneS; ses, which would make it appear the written con-traotltself; wiHnotbegrant-ed on the ground vered evidence, facts which are the second trial must have been within the knowledge afthefirsuaitieS With respect to tbe testimony of Mr.

Kitchen, we think it would avail the defendant nothing, even if admitted, and as to the payment, he had an opportunity of proving that, by answering the interrogatories propounded to him, touching the payment of the price set forth in the bill of sale. That part of the fourth interrogatory, in which he is called on to say, “how much money he had paid in cash, and to whom it was paid,” is not answered at all. The affidavit of Dowty, by whom the defendant expects to prove the payment of the money to Lowe & Co., is also in the record, and he is silent as to any payment of money by Beaman, to his vendors.

The defendant, Waters, makes oath that W. H. Kitchen, the same witness mentioned above, is material and important, on the same ground as stated in the affidavit of his co-defendant. He stages that he was unavoidably absent at the time of the trial, and he gives an account of the transaction, from which it would appear that he suggested to Beaman the idea of making the purchase, and that he afterwards became interested, and secured a debt due to him by Lowe & Co.

He does not state by what witnesses he could prove these facts on a new trial, and if he had, such evidence would be wholly inconsistent with the terms of the bill of sale. All’ the facts which the parties allege, they expect to prove on the new trial, except what relates to the offer of r 3 r ^ Lowe & Co., to sell to Kitchen and others, which we consider immaterial, must have been within their personal knowledge before the first trial; and this court held, in the case of Smith vs. Crawford, that in such case, an application for a new trial ought not to be granted. 10 Martin, 81.

It is assigned as error apparent, on the record, that the judgment does not conform to the verdict. The verdict is in favor of the plaintiffs and intervenors, and that they recover the sum of four thousand nine hundred and thirty-two dollars , , , , ni ■»• . and thirty-six cents, to be divided among all the creditors of Lowe & Co. The judgment is, that the verdict of the jury, and the law-and evidence being in favor of the plaintiffs and intervenors, it is ordered, adjudged and decreed, that the plaintiffs recover said amount. It appears to us that there is no substantial discrepancy.

The intervenors became parties plaintiff, and joined the original plaintiffs in the pursuit of their rights. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.