(dissenting.) The judgment of the trial court in this case would be affirmed were it not that a majority of this court discover error in the seventh instruction given to the jury on the court’s own motion, and over the objection of the plaintiff. That instruction is as follows : “The second proposition is that if any part of Wallace’s debt was contracted with the specific purpose in view of running the attachment, the debt is fraudulent. Of course, a person may sell to a debtor with a general purpose of securing himself by attachment if it should become necessary; but he' must not sell with the specific intention and purpose in view, at the time of the sale, of running an attachment that would absorb the debtor’s property, to the exclusion or detriment of other creditors.”
It is announced substantially by the court, in its opinion in this case, that it is not fraud against other creditors for one creditor to contract a debt against the common debtor, having the specific intention at the time of attaching his property to secure his debt, if the same is not promptly paid when due. There never was a sounder doctrine than that in the abstract, but is it so in this particular case ? In selling a piece of property to another, I may have in my mind the intention to sue him, or to recover and secure my debt in any or all of the ways known to the law, should he fail to pay when the debt is due ; and certainly there is no fraud in such intention. That is a plain case. But that rule is not applicable to a case, where the intention is to do something more than to assert and secure one’s rights. In the instruction under consideration, the trial court said, that it is a fraud for one to contract a debt with the specific intention at the time “ to run an attachment that would absorb the debtor's fro-perty, to the exclusion or detriment of other creditors.” And whatever may be the want of explicitness, or the inappropriateness, of the lang-uage of the remaining portion of the instruction complained of (for it seems to be only explanatory of the first part), the language we have quoted is so plain and concise that the jury could not but understand exactly what the court meant in the whole of the instruction.
If. we were disposed to be critical, we would perhaps say that the phrase “to the exclusion of” was not ■strictly expressive of the idea evidently intended to be expressed, — not so good as the alternative phrase “to the detriment of” just following it; but, taking it in connection with the subject matter of all the instructions, the simple, well-understood meaning of the court was that, for Wallace to contract his debt, or any part thereof, with the specific intention of absorbing the debtor’s property, so as to exclude other creditors from the assertion and maintenance of their rights, was fraudulent. If this be true, the contraction of the debt was certainly a fraud upon the irig'hts of other creditors. That certainly was the idea intended to be expressed by the court, and was evidently the sense in which the jury received the instruction, taken in connection with the other instructions. Wallace claimed that Aitken owed him about $800 previous to the sale of the five barrels of whiskey on the 8th of May, 1893, and the five barrels were sold for about $500. Wallace disclaims, inferentially, all intention of attaching Aitken at the time he sold the five barrels. He testifies that he attached Ait-ken on receiving information at Huntington, on the day of the attachment, or about that time, that Aitken had been secretly endeavoring to sell to another party.
Wallace attached on his debt of $1300, and after-wards bought up the claim of another small attacher, so that his claim with all interests, etc., added, amounted to $1550. With Aitken’s assent, he procured an order from the judge in vacation to sell the goods, as being of a perishable nature, and likely to greatly deteriorate if kept on hand. When it is kept in mind, that the goods consisted of nothing else but whiskey and other liquors (nothing-else of consequence), the application to sell at once, to avoid loss, is rather remarkable, since it is thought among connoisseurs that age adds much to the value of such goods. Besides, there is no intimation of waste or leakag'e, or that storage amounted to much. His order required the sheriff to sell on five days’ notice and interveners’ attachment was run on the very day of sale, I think. It would have been, perhaps, earlier, but the attachers were far away, and could not have heard of plaintiff’s proceedings any sooner. Wallace bought all the goods at the sale for $1550, the amount he claimed was then owing him by Aitken, and immediately resold to Aitken, for $2000, taking a deed of trust and -note from Aitken, with some time to run, on the identical property, and set him (Aitken) up in business again.
The court gave its instructions in view of these facts, as well as of other outside facts, which cannot now be recited. The question is, was there not evidence to the effect that the last debt (the price of the five barrels of whiskey) "was contracted for the specific purpose of attaching the whole of Aitken’s property, not only these five barrels, but many other barrels he had purchased from interveners and others, and had not had time as yet to dispose of in the usual course of trade ? And was there not evidence also to the effect that the forced and hurried sale enabled plaintiff to make, not only his debt, but an undue profit on the goods ? If so, the last sale of whiskey may have been made for the specific purpose of making the undue profit; and, in the language of the court to the jury, the intention was, when the sale was made (or the jury might well have thought so) “to run the attachment, to absorb the debtor’s property, to the exclusion or detriment (either one or the other) of the other creditors.”
To apply the instructions to a part of the facts, it would perhaps be objectionable, as the majority of the court says, but applying- it to all the facts antecedent and subsequent to the institution of the suit, to our minds the court was substantially correct in its deliverance to the jury"; and the jury could not have misunderstood the court, in the light of all the instructions, especially the fourth for interveners and the seventh given on the court’s own motion.
We think the judgment should be affirmed.
Wood, J., concurs.