The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-03-14
CREENHOOO-BOHM CASE.
Judges Hunt and Buck ADOPT the
Main Findings of the
Jury.
The Receiver la Required to Paw
the Banks Claim in
Full.

A $4,000 Damage Suit Against tho Mon
tana Central Railway Company
By an Engineer.
In tho suit of the Merchants National
bank vs. GREENWOOD Pohm ~ Co., Judge
Hunt yesterday morning read the opinion
OF himself and Judge Buck upon the judg-
ment to be entered in the case. The bank
had moved the con t TO find that tho prefer
ence Of Greenwood BONN a. Co. in favor OF
Retail was fraudulent Notwithstanding this
jury had found that IL was not fraudulent.
This motion was based upon certain au-
thorities presented to the court by tho
PLAINTIFF, and was resisted by counsel for
GREENWOOD, Bohm a. Co. II will be noticed
IN the opinion that the judges adopt the
main findings Of the jury declaring the as-
siQnment fraudulent but decline to find
that the Bach. Cory d Co. debt and the Re-
jail preferences were fraudulent. The
judgment in the cage requires the receiver
to pay the costs Of the suit and to pay tho
Merchants National bank In full and TO
hold any surplus moneys in his bands sub
ject to the further order Of the court. The
opinion ia favorable to the plaintiffs oase
but uron certain contentious made by the
bank the law is held against them. and in
favor of the assignment. Tho case will
now pass into judgment and eventually e
to the supreme court. The opinion 10 as
follows:
I'VE adopt the findings of the jury which
we are asked to make our own as chancol-
ID,e nI,1 s-~, -~ALtn- Ahn,u rpnn ~
unusual intelligence. The evidence against
the validity OF the assignment Of Green
hood. BONN & Go. to Max Kahn abounds
with what are known in the law OF assign
ments 40 ''bndees'' or "indicis Of fraud"
1t is unnecessary to specify these in detail.
Ihe raising of inventories by the a%ssienors,
the attempted preferences on the eve Of
the assignment, and the selection Of an en-
ploye without financial responsibility as
assignee, requiring no O of him, are
salient features OF the transaction which,
no doubt, influenced the minds Of the ju-
rors in arriving at the conclusion that a
fraudulent intent existed IN the execution
of the assignments. We proceed to the con-
sheraton OF the two findings which We
are asked to reject. The jury. found
dred dollars Bach, Cory d Go. ana Re-
jail, another creditor for several thousand
dollars more than the amounts actually
due them. there was no intent to hinder.
delay or defraud creditors. The assign
ment directs the assignee to pay Bach.
Cory d Co. several hundred dollars more
than the amount actually due them. taking
into consideration the fact that at the date
Of it's execution Bach, Cory d Co., were in
debted to Greenwood, BONN Il Co. in q
the assignment directed the assignee to
COLLECT all debts due the assignors. how
ever. we hold that under the terms Of the
instrument its III the assignee was author
lied to deduct from the preferred claim of
Bach. Cory d Co. the counter claim OF the
%Assignors. This finding must stand.
Eat the time of the execution of the as
eignment. according to the evidence. the
assignors not knowing the exact amount of
their indebtedness to R.iall, one OF their
largest creditors, by reason OF the fact that
the books of tLeir branch house in New
York city were not at h..nd. placed Retail
in the list of preferred creditors for an
amount several thousand dollars in excess
of his actual claim. The jury found this
was due to an honest mistake. The
plaintiffs insist that Notwithstanding this
view of the jury No to intent, the court must
disregard il and find that such preference
was made with the intent to hinder, delay
md deffaud creditors The authorities
cited in support Of this. plaintiffs contend.
nre Of the following tenor: An assignee
epresents only the assi9nor, not the credit
prs; he ia bound by the terms of the assign
hnent and has no power to correct
any such mistake, however innocently made;
nor have creditors asserting to the as
signmeut any power to demand the coIrec-
ion of any such mistake, inasmuch as they
are also bound by the terms of the instru-
ment; furthermore. that courts of equity
have no jurisdiction to correct any such
error, inasmuch rs their Jurisdiction is con.
tined solely to the enforcement OF the trust
hs defined and declared in the instrument
81 assignment itself. Therefore counsel for
plaintiffs insist such q preference operates
per 80 as a hindrance, delay and d%efrauding
Of creditors Of the assiGnors not consenting
to be bound by the terme Of the assignment:
consequently, it is the duty of the court as
b matter of law to impute a different in
lent in this Retail preference from that
found by the jury to have actually existed.
We frankly admit that a plnusibly logical
Interpretation of these authorities cited
night lead to such a conclusion.
But has n court a right to in iect q frnudu-
emit intent into suoh a transaction after q
ury upon full and sufficient evidence has
ound the contrary? In this case the ques-
ion OF whether or not such an intent ex-
sted was properly submitted to the jury;
,or the fact that Retail was preferred for
more than was actually due him did not
lrpear upon the face OF the assignment.
the evidence did not justify the finding
Ne Woulu nave no olulCulty IN reRCllnS q
,o~nclusion-but it does. Undoubtedly the
aw often imputes a fraudulent intent in
he execution of an assignment whore its
pwn terms oleasly indicate it, or when the
assignment taken in connection with ex-
rinsic evidence ~iustities ii. But must
here not exist evidence of the one kind OF
he otherp Under our statute governing
Fonveyances of this character clearly in
rider to render them invalid the intent
must exist. whether it be found Rs tho
esult of the trial Of an Issue of fact
,t AZ the result OF controlling legal pre-
sumption arising from an existing oondi-
ion Of facts. Intent in such n CASE cannot
DO treated as a fiction Of the law. We
annot on the evidence in the case, or as a
Presumption of law, set aside this finding.
We do not believe that the cases cited bv
Plaintiffs in support of their theory 40 to this
|xtent. The very latest case upon this
ubject in New York. upon whose decisions
plaintiffs chiefly rcly-we refer to one from
he New York court of Observation-Disclosures a
cry grave doubt "a to whether the courts
that state would hold as plaintiffs insist
his court must. II, as counsel contend, the
asses they cite 90 to the extent of holding
hat courts of equity cannot grant relief as
O q mistake of this character. We must re-
ect them on tho ground that they do not