#### Jacob Parmenter, Resp’t, *v.*John J. Fitzpatrick, Impl’d, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Conversion—Sale—Chattel mortgage.

Where the defendant claimed that a written instrument under which the plaintiff asserted absolute title to certain chattels was a mortgage given only for security, and that it was void for non-filing as against defendant who represented judgment creditors of the mortgagor, *Meld,*that it was a proper question for the jury whether the instrument was a chattel mortgage or an absolute bill of sale', and that their verdict, upon conflicting evidence, would not be disturbed.

2. Sale—Fraudulent transfer.

A sale of chattels not accompanied by immediate delivery is presumptively fraudulent as against the creditors of the vendor, and the burden is upon the person claiming under the vendor to show that the sale was *bona file*and made without intent to defraud. The question of intent is one of fact, and the verdict of a jury thereon will not be reversed unless it shows prejudice or passion.

Appeal from a judgment entered on the verdict of a jury, in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes of the court.

The action was brought against the defendant, Fitzpatrick, sheriff of Clinton county, and some judgment creditors of A. 0. Smith & Co., to recover for the alleged wrongful taking and conversion of a stock of merchandise.

The summons was served only the defendant

The complaint alleged that, at a time therein stated, the plaintiff was the owner and in possession of a stock of goods, wares and merchandise which he purchased of A. C. Smith & Co., on the 2d of April, 1888, subject to a lien for $76.27 in favor of C. P. Moses, and that on or before the 15th of April, 1888, the defend*368ant took possession of the whole of such stock and property, and converted the same to his own use.

That the value of the property taken was $2,500 over and above the lien, and that before the commencement of this action he tendered to the defendant Fitzpatrick the amount of the lien and demanded possession of the goods, which demand was refused.

The answer of the defendant denies that he took possession of "the plaintiff’s property and the tender of the amount of Moses’ lien.

The answer sets up the recovery of a judgment in the supreme court by Moses against A. C. Smith & Co. on the 20th of March, 1888, the docketing of the same in Clinton county on the 21st day of March, 1888, on which an execution was issued to this defendant on the 21st day of March, 1888, as sheriff of Clinton county.

Also the recovery by different persons or firms of four other judgments in the supreme court against A. C. Smith, one on the 14th of April, 1888, for $518.79, which was on that day docketed in Clinton county, on which execution on that day was duly issued to this defendant as sheriff; one on the 13th day of April, 1888, for $3,309.63, which was also duly docketed in Clinton county, and on the same day two other judgments were rendered in the supreme court against A. C. Smith & Co., one for $1,491.88 and one for $3,716.63, all of which were on, that day docketed in Clinton county, on each of which executions were on the 15th day of April, 1888, duly issued to this defendant as sheriff, and that upon all the executions in his hands he on the day of the issuance of the same levied upon the property mentioned in the complaint in this action, and after having duly advertised the same sold said property under and by virtue of said executions, and that the same did not on such sale sell for enough to satisfy the first three executions.

On the trial of this case upon the issues so made the plaintiff recovered, and from that recovery the defendant appeals.

*Beckwith, Barnard & Wheeler (George E. Beckwith,*of counsel), for app’lt; *Riley & Conway (J. F. Conway,*of counsel), for resp’t.

Mayham. J.

The plaintiff claims title to property alleged to have been converted by the defendant under an instrument in writing dated April 2, 1888, which he insists is an absolute bill of sale, conveying to him the title to all the property in controversy, and that the consideration expressed therein was fully paid by his assumption and payment of $13,000 of notes made by A. C. Smith & Co., his vendor, for the debts and liabilities of that firm, and on which the plaintiff was an accommodation endorser.

The defendant and appellant insists that the writing under which plaintiff claims title was, in effect, but a chattel mortgage and intended only as security, and that as against the defendant who represented the judgment creditors of the mortgagor the same not having been filed as required by law was void.

The instrument is in form a bill of sale, and is as follows :

> *369“ Plattsburgh, *April*2, 1888.

> “Jacob Parmenter.

> “ Bought of A. C. Smith & Co. the entire stock of goods, wares and merchandise of every name and nature (here follows a particular designation of property and the place in which it was).

> “ This sale is intended and does include all the property belonging to us in said building or store, Xo. 71 Margaret street, and also all the organs, pianos, musical instruments or sewing machines which we have placed in the Dominion of Canada, Vermont, or Essex, FL Y., for the sum of $13,000. For and in consideration of said purchase said Parmenter has paid us the said sum $13,000 and we hereby acknowledge the payment of the •same.

> “ We further hereby agree to give the said Parmenter peaceable possession of said store and property whenever he shall demand the same.

> “A. 0. Smith & Co.”

Upon the face of this paper it purports to be an absolute “ bill of sale ” reciting the payment of consideration and such sale, if sale it was, was before the liens of any of the executions in the hands of the defendant could attach, except the execution on the judgment of March 2, 1888, for $76.27.

But the appellant claims and insists that the testimony of the plaintiff shows that the property was taken by him only as security for his endorsement. The alleged consideration was the taking up and retiring by the plaintiff of the vendor’s notes to the amount of $13,000, and the plaintiff insists that he paid that consideration and actually took up and retired that amount of those notes, and in his testimony given on the trial he testified :

> “ I have paid and retired $13,000 of these notes of A. C. Smith & Co. pursuant to that agreement”

There was other evidence tending to show that this was an absolute “ bill of sale ” and there is also evidence offered by the defendant tending to show that it was a security in the nature of a mortgage.

But on the trial it was submitted to the jury by the trial judge, under proper instructions, for them to determine, under all the evidence, whether the writing was intended by the parties as an absolute sale, or as a security in the nature of a mortgage, and if they found it was but a mortgage or as a security for plaintiff’s endorsement of these notes then the plaintiff could not recover.

That was a correct interpretation and exposition of the law, *Dutcher*v. *Swartwood,*15 Hun, 31; *Stimson et al*v. *Wrigley,*86 N. Y., 339, and it was properly left to the jury, because a bill of sale or a deed absolute, upon its face may be shown to be only a mortgage or security for the performance of some act by the vendor or grantor. As a finding by the jury that this was intended as a mortgage would have resulted in a verdict for the defendant, we must assume on this appeal that as their verdict was for the plaintiff they must have found that the instrument was *370what it purports to he, an absolute bill of sale; as was said by the court in *Wolf*v. *Fire Ins. Co.,*43 Barb., 405, “ If either of these propositions are to be regarded as established by the verdict, it is the latter, according to the intendment of the law, that the verdict settles in favor of the prevailing party every question of fact litigated on the trial.

“We are not to intend that the jury found either of the issues in favor of the unsuccessful party for the purpose of overturning the verdict. On the contrary, we are required to hold that every issue was found against the unsuccessful party if necessary to sustain the verdict.”

We think the rule above laid down is correct when there is sufficient evidence to uphold the finding of the jury and that from their verdict we must conclude that they found the transaction between *A. G.*Smith *&*Co. and the plaintiff a sale; a conclusion which, when found by the jury, is supported by sufficient evidence to-uphold it.

The jury having found it a sale, the next inquiry arises as to a valid sale, under the circumstances, against the defendant, who is proceeding under valid judgments and executions against the property of the plaintiff’s vendor.

It is insisted by the appellant that if it be held that this was an absolute sale, as between the plaintiff and his vendor, still it is presumptively fraudulent and void as to this defendant and the judgment creditors whom he represents.

As to the judgment and execution of March 12,1888, on which the defendant had a levy before the execution of the bill of sale, the plaintiff concedes the lien if the execution is valid and seeks-to avoid its effect by a tender, which will be discussed in a subsequent part of this opinion.

But as to all the other judgments and executions under which the defendant seeks to justify his interference with this property, the plaintiff insists that he has the title and that his vendor and the creditors of his vendor have no right to it

The bill of sale was executed and delivered on the 2d of April,, and by its terms the plaintiff had a right to the possession whenever he shall demand the same, and he took possession on the 5th of April.

The statute declares that *“*Every sale made by a vendor of goods and chattels in his possession or under his control * * * unless the same be accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing sold, * * * shall be presumed to be fraudulent and void as against creditors of the vendor * * * and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the person claiming under such sale * * * that the same was made in good faith and without any intent to defraud such creditors.” 4 R. S., 8 ed., p. 2591, § 5. Section 6 of the same title defines the term “ creditors.” as used in § 5, to be-any who shall be creditors of the vendor at any time while the chattels shall remain in his possession or under his control.

Section 4 of title 3 of the same chapter provides that the fraud*371ulent intent under this provision of the statute shall be a question of fact and not of law. 0

Under these provisions of law the burden was cast upon the plaintiff in this case to satisfy the jury that this was a valid and *bona fide*sale of goods, and that the same was made by the parties to it in good faith and without any intent to defraud the creditors of the vendor.

It is true that by the bill of sale absolute in its terms the title as between the vendor and vendee passed at its delivery, and there is evidence in the case that the vendee was to have the proceeds of the sales at the stores after that time, but that does not answer the requirements of the statute of frauds, which, as we have seen requires an *actual*delivery at the time of the sale and that learned trial judge held that, if the jury found that it was an absolute sale, it not being followed by an immediate change of possession and presumptively fraudulent and void under the statute, it was for the jury to détermine whether the sale was made in good faith or with intent to defraud creditors.

There was no exception to this ruling and we think it a correct application of the law.

Upon this disputed question of fact there is evidence upon which the jury could probably have found either way ; and their finding would on appeal have been sustained whichever way they found.

As was said by Pinch J., in *Stimson*v. Wrigley, 86 N. Y., 337: “ The question of fact is not without difficulty. There was some contradiction in the testimony or at least in the inferences to which it led, and where that is the case the conclusions of the trial court upon the facts are not open to our review."

It is true that that rule is not as inflexible when applied to the review by the general term of this court as it is in the court of appeals, yet in this court, unless there is such a preponderance of evidence against the verdict as to evince prejudice or passion, the verdict of a jury upon disputed questions of fact by a jury remains a part of our judicial system, their verdict should be respected by appellate courts unless it is manifest to the appellate courts that such verdict is the result of passion, prejudice or clear misconception of the law, as laid down by the trial judge.

The jury having found in favor of the plaintiff upon the question of fraud, which in this case is a question of fact made so by statute, as we have seen and there being evidence to uphold their finding, it must be sustained on this appeal.

Uor do we think their verdict should be interfered with on the ground of excessive damages. There was evidence to uphold the same.

Before the purchase on the bill of sale the defendant had levied the execution issued on the judgment of March 2, 1888, for $76.27, on the goods in question and he had, therefore, as against the plaintiff’s vendor before the sale and the plaintiff after the sale, a valid lien on the same.

This lien the plaintiff, on the 19th of April, sought to extinguish by payment of that execution, and for that purpose, on *372that day, he tendered to the defendant eighty dollars in gold in payment of that judgment and satisfaction of that execution.

It is true that in some of the technical rules in respect to the making of a tender, the evidence is not quite complete, but we think enough was proved to authorize the jury to find that the plaintiff offered to pay the small execution which had been levied on the property before the execution of the bill of sale, which was . refused by the defendant, who had at that time other executions against A. C. Smith & Co., the liens of which defendant claims had attached, and the eighty dollars tendered was insufficient to satisfy all the executions in his hands at the time of the tender.

It is not claimed cthat the amount tendered was insufficient to pay the execution, but it is insisted that the same was not absolute, but conditional, and therefore ineffectual as a tender; but we think the jury were authorized by the facts disclosed to find that the plaintiff offered.to pay and satisfy the execution.

The law seems well settled that a tender by a judgment debtor to the sheriff of a sufficient sum to satisfy the execution discharges the lien of the execution upon property levied upon by virtue thereof. *Tiffany*v. *St.*John, 65 N. Y., 314.

The offer of payment or tender in the case at bar is different from the case of *Noyes*v. *Wyckoff,*114 N. Y., 204; 23 N. Y. State Rep., *105.*

In this case the tender was upon the express condition that it was “in payment and extinguishment of his lien.”

In this case the plaintiff swears that he and the defendant had a talk about this execution, and the defendant, at plaintiff’s request, gave him the figures $76.27.

In describing what occurred at the time of the alleged tender, witness says: “ The next occasion when I went to see the sheriff was when I made the tender ; that was the 14th of April.

“I took the money out; it was in gold; I said I tender you eighty dollars for that judgment, but he refused, and did not receive it.”

The jury might well understand that this was an offer of payment on account of the execution, without imposing any conditions upon the same, except such as the law would attach to the transaction.

The plaintiff having acquired the title to this property by the bill of sale on the 2d of April, and taken actual possession on the 5th, and before any -actual levy was made by the defendant on the executions issued after the 2d, his title having been acquired before actual levy on such other executions, would not be affected by them.

The title to personal property acquired before the actual levy of an execution by a purchaser in good faith, and without notice that the execution has been issued, is not affected by an execution delivered, before the purchase was made, to an officer to be executed. Code of Civ. Pro., § 1409.

We have examined the several exceptions to the ruling of the learned judge on the trial, and find no error in the same for which judgment should be reversed.

*373Judgment affirmed, with' costs.

Learned, P. J., and Landon, J., concur;