Eppinger v. Scott

Harrison, J. Action of claim and delivery to recover the possession of certain trays and sweat boxes.

[370]The plaintiffs claim the property by virtue of a bill of sale made to them by Napoleon Vieu; and the defendant, who is the sheriff of Fresno county, claims the same by virtue of a levy under a writ of execution upon a judgment issued against said Vieu in behalf of one Fon Kee. The controverted issues at the trial were whether there had been a sufficient change of possession to satisfy the statute of frauds, and whether the sale to the plaintiffs had been made with the express purpose on the part of Vieu to hinder and defraud his creditors, and particularly the pdaintiff in the execution. The case was tried by a jury, who rendered a verdict in favor •of the defendant. From the judgment thereon and an order denying a new trial the plaintiffs have appealed.

Upon the foregoing issues the evidence in behalf of the respective parties was decidedly conflicting, and the verdict of the jury thereon cannot be disturbed.

For the purpose of sustaining the defendant’s claim that the sale by Vieu to the plaintiffs was with the intent to defraud his creditors, evidence was introduced tending to show that the' sale was made in consequence of an effort by Fon Kee to collect the amount of his claim; and a telegram, dated April 5, 1893, and directed to Vieu at Dixon, which Mr. Spencer, a witness on behalf of the defendant, testified that he wrote and sent for Fon Kee, was offered in evidence. This telegram is as follows:

“April 5, 1893

“N. Vieu, Dixon, Cal: Your note is past due. You no pay me, I commence suit. Fon Kee.”

The plaintiffs objected to the introduction of this telegram, on the ground that it was irrelevant, immaterial, incompetent, and could in no way bind them. Their objection was overruled and the telegram admitted in evidence, and this ruling is now assigned as error. It had already been shown that Vieu made the bill of sale to the plaintiffs on the sixth day of April; that Ettlingér, one of the plaintiffs, who resided at San Francisco, met Vieu at the ranch in Fresno on that day by previous [371]