HARASZTHY v. SHANDEL.

27 P. 876

1 Colo.App. 137

HARASZTHY et al.
v.
SHANDEL.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Arapahoe county; W.S. DECKER, Judge.

Replevin
by Arpad Haraszthy & Co. against Oppenheimer, and Mrs. Bertha
Shandel, intervener, for a lot of liquors. Judgment for Mrs.
Shandel, the intervener. Plaintiffs appeal. Affirmed.

Joseph
N. Baxter, for appellants.

H.E.
Luthe, for appellee.

BISSELL,
J.

This
controversy grew out of the transactions between one
Oppenheimer and Mrs. Shandel, the appellee. Early in 1889,
Oppenheimer bought a very considerable quantity of wine and
similar goods from the appellants in San Francisco, and
settled for them with his acceptances due in [1 Colo.App.
138] 30 days. The goods were shipped to Denver, and held by
the railroad company for the freight and transportation
charges. In order to get possession of the goods for the
purposes of his business, he negotiated a loan with Mrs.
Shandel for enough money to pay these charges, and leave
himself a small balance. It appeared that prior to the time
of this transaction Oppenheimer had become indebted to either
Mrs. Shandel or her husband in a little upwards of $200, of
which indebtedness Mrs. Shandel was undoubtedly the legal
owner at the time of the latter transaction. The loan was
made upon condition that this pre-existing indebtedness be
treated as a part of it, and be secured in the same way that
the money to be advanced was provided for, to-wit, by a
surrender and pledge of the goods to Mrs. Shandel as security
for a return of the eight hundred and odd dollars. The loan
was made, and the goods were put into Mrs. Shandel's
possession, and she was holding them as security for her
advances when this suit was brought. After the shipment and
pledge of the goods, Haraszthy & Co. became satisfied that
Oppenheimer did not intend to pay for them, and that the
transaction was of that fraudulent character which gave them
a right to rescind the sale. Acting upon this theory, they
brought a replevin suit in the county court, and took the
goods under the writ. Oppenheimer defended, and Mrs. Shandel
intervened, set up her claim for the advances and the pledge
of the goods at the time of the loan, and prayed for relief
accordingly. Haraszthy & Co. in their reply set up what they
alleged to be the fraudulent character of the transaction as
between them and Oppenheimer; denied the pledge for the
advances, and then pleaded a conspiracy, as between the
intervener and Oppenheimer, which, if proven, would have
debarred Mrs. Shandel from any right to hold the goods as a
security. The trial resulted in a judgment in favor of the
appellants, and Mrs. Shandel alone appealed to the district
court, where the cause was again tried, and resulted in a
judgment in her favor. Haraszthy & Co. appeal, and assign
various errors, of [1 Colo.App. 139] which it will only
[27 P. 877.]
be profitable to discuss those which are disposed of in the
opinion.

During
the progress of the trial in the district court the
appellants sought to introduce in evidence the pleadings and
judgment against Oppenheimer in the county court as bearing
upon the question of the right of Haraszthy & Co. to rescind
the contract. The proof was properly excluded. Under the
issues, the inquiry in the district court was as to the
advances made by Mrs. Shandel to Oppenheimer, and the
existence or non-existence of a conspiracy between them to
defraud Haraszthy & Co. out of their goods. The pleadings and
judgment in the county court, as between Haraszthy & Co. and
Oppenheimer, would in no manner have tended to throw light
upon this conspiracy, but would have brought another issue
into the case not made by the pleadings, and would have been
prejudicial to the assertion of whatever rights Mrs. Shandel
may have had. In so far as those pleadings were a part of the
case which was tried in the district court, it was wholly
unnecessary to introduce them in evidence, since they could
have been used for all legitimate purposes without the offer,
and they were not otherwise available for the purposes of
proof.

It is
insisted that the court erred in refusing some instructions
which were asked by the appellants. It is enough to say,
generally, that the instruction presented upon the subject of
the right of the appellants to rescind the contract was
wholly inapplicable to the issue which was being tried, and,
though perhaps good as a legal proposition, was properly
refused, because it tended to embarrass the jury with an
issue which was not before them. Some of the instructions
which were asked on the subject of the knowledge which it was
asserted Mrs. Shandel had of Oppenheimer's intention to
defraud Haraszthy & Co. were too broadly expressed to be an
accurate statement of the law applicable to the case, and
they were not justified by the evidence which had been
introduced. The others on that branch of the case were fully
covered by the eminently fair charge of the court [1
Colo.App. 140] to the jury. The other instruction refused,
whereon error is assigned, states the law to be that a
pre-existing debt is not such a valuable consideration as
will uphold the pledge in the hands of the pledgee against a
creditor who has a right to rescind the sale and recover the
goods from his vendee. Much learning is to be found in the
books touching the character of a pre-existing debt as a
consideration for the sale of real and personal property when
the transfer is assailed by existing creditors. A revival of
the discussion or a defense of the doctrine announced would
be entirely superfluous. In this state the question has been
set at rest, and it is well settled that a pre-existing debt
is a good consideration to support the transfer of property,
as against existing creditors, unless the bona fides of the
transaction can be otherwise impeached. The action of the
court below was in harmony with the law laid down by the
supreme court of the state. Knox v. McFarran, 4 Colo. 586;
McMurtrie v. Riddell, 9 Colo. 497, 13 P. 181; Bank v.
McClelland, 9 Colo. 608, 13 P. 723.

With
reference to the other error assigned, that the verdict was
unsustained by the testimony, it need only be said that it
was rendered on conflicting testimony, and upon any
consideration of the preponderance of evidence the verdict of
a jury is entirely conclusive. Kinney v. Wood, 10 Colo. 270,
15 P. 402. Perceiving no substantial error in the record, the
judgment will be affirmed.