One of the questions for the jury, at the trial in this case, was whether John J. Whittier, when he made the mortgage, was insolvent, or in contemplation of insolvency; another was whether he made it with an intent to give the defendant a fraudulent preference; and the third was whether the defendant had reasonable cause to believe that he was insolvent or in contemplation of insolvency, and that he intended the mortgage as a fraudulent preference.
As furnishing an answer to the last of these questions, the mortgage itself was an important part of the evidence relied on *50by the plaintiff, and if, as appears, it was not made in the usual and ordinary course of business of the mortgagor, it would, if unexplained, have established the proposition which the plaintiff sought to maintain. Pub. Sts. c. 157, §§ 96-98. Metcalf v. Munson, 10 Allen, 491. For, upon the theory of the statute, the defendant ought reasonably to have inferred from it that the mortgagor was insolvent, and that he intended to give a fraudulent preference. It therefore becomes important for him to eliminate from the transaction, if possible, every element from which such an inference might legitimately be drawn.
For this purpose he was permitted, without objection, to prove that there was an agreement, at the time of giving the former mortgage, that the security should be kept good by making a new mortgage when new goods should replace those sold from day to day. It appeared by the plaintiff’s evidence, that the mortgage in question, complete except as to date and signature, was carried by the defendant to Whittier’s house, where Whittier was confined by sickness, and was there executed. But it might have been argued that this was presumably in pursuance of a request or suggestion of Whittier, from which the defendant ought to have inferred his insolvent condition and his fraudulent purpose. The defendant was, therefore, rightly permitted to go further, and negative the possibility of such an inference, by showing that the making of the mortgage resulted directly from the suggestions of the defendant’s counsel, and that the debtor had nothing to do with it until it was ready for his signature.
The conversation with Mr. Wilcox was not admitted to prove the truth of the statement made by him, but only as a circumstance explaining the origin of the mortgage, and rebutting the natural inference from the unexplained making of such a conveyance, that the mortgagor had a fraudulent purpose, and that the mortgagee ought to have believed that he had it. In a case of this kind, facts known to the mortgagee, which tend to explain the making of the mortgage consistently with the innocence of the mortgagor, are competent, not only upon the question what inferences should have been drawn by the mortgagee in regard to the mortgagor’s purpose and intent, but also upon the question what was in fact his purpose and intent.
Exceptions overruled.