Sukeforth v. Lord

FOX, J. This is an action against the sheriff of Nevada county for the recovery' of the sum of $4,000 damages, for the unlawful conversion of a stock of merchandise. The sheriff justifies under an attachment, and subsequent judgment, in the superior court of the city and county of San Francisco, in a suit wherein George D. Cooper was plaintiff and L. M. Sukeforth was defendant. No exception is taken to the regularity or legality of the proceedings or writ in that case. The goods were levied upon as the property of L. M. Sukeforth, the judgment debtor, but found in and taken from the possession of E. G. Sukeforth, the plaintiff in this action. The action was tried before a jury, verdict and judgment in favor of plaintiff in the sum of $3,000, motion for new trial made and denied, and defendant appeals. The value of the property alleged to have been unlawfully converted is admitted by the pleadings to have been $4,000, and the verdict and judgment was for $3,000. This disposes of one point made on the motion for new trial, and insisted upon on the appeal—that the verdict was excessive.

Another point made on the motion, and insisted upon here, is that the evidence was insufficient to justify the verdict. It is not disputed that L. M. Sukeforth and E. G. Sukeforth, the plaintiff in this case, are brothers; that for nine years prior to August 15, 1888, L. M. Sukeforth was a retail merchant doing business at Nevada City; that in August, 1888, he had on hand a stock of goods, principally furniture and carpets, the accumulation of that nine years, which would inventory at a cost price, with freight added, at about $6,000, with a lot of book accounts of uncertain value, and a small amount of other personal property not exempt from execution, and was in debt to wholesale merchants between $5,000 and $6,000, beside the indebtedness due to his brother, L. M. Sukeforth, and to some others. It is also shown in the evidence, without material conflict, that by reason of the age of the goods, the patterns being out of date, and many of them shopworn and remnants, and of the state of the market, the stock was not worth at Nevada City over fifty cents on the dollar [240]of its cost price. It is also shown, and uncontradicted, that on the fifteenth day of August, in that year, L. M. Sukeforth made to E. G. Sukeforth, the plaintiff, a bill of sale of this entire stock, and of all his book accounts and personal property not exempt from execution, and put the vendee in possession, himself leaving the premises and going to Sacramento; that E. G. Sukeforth remained in the exclusive possession, and was actively engaged in trying to sell off the property and close out the business, until some time afterward, when the stock was seized on attachment against L. M. Sukeforth, as above mentioned. The actual consideration of this sale to plaintiff was shown to have been in part an indebtedness actually due to the plaintiff, and upon which plaintiff was then threatening to attach if settlement could not be made; in part certain indebtedness due to other persons, which the plaintiff then assumed, and afterward actually paid, either in cash or by giving his own notes therefor, and in part cash paid at the time by plaintiff to the vendor, and amounting in the aggregate to $2,845. From the relationship of the parties; from what he insists was inadequacy of consideration; from the fact that L. M. Sukeforth was insolvent; and from the fact that this sale was made without taking an account of stock and accounts, or making a formal inventory of the goods and property conveyed—appellant argues that this sale to respondent was fraudulent, and made with intent to hinder, delay, and defraud the creditors of L. M. Sukeforth. Upon this proposition he makes a very plausible argument, and selects many disconnected passages from the testimony which would tend to support it; but at the samé time it appears that the evidence upon that subject is conflicting, and it therefore follows that, under the rule of this court announced in nearly three hundred cases, the verdict of the jury ought not to be disturbed. For this reason, as well as for the one announced in response to the next point, we are not disposed to discuss this evidence to the extent that we might otherwise feel called upon to do.