Chevalier v. Commins

Citations

• 106 Cal. 580
• 39 P. 929
• 1895 Cal. LEXIS 644

Syllabus

<p>Insolvency—Preference to Creditor—Action by Assignee—Conflict of Evidence—Credibility of Witness.—In an action by an assignee in insolvency to recover personal property, or its value, alleged to have been transferred by the insolvent to the defendants within one month before the filing of the petition in insolvency, with a view to give a preference to the defendants, and with reasonable cause by them to believe that the debtor was insolvent, where there is evidence tending to show that the defendants knew of the insolvency at the time of the transfer, and that the transfer was intended to prefer them as creditors, the fact that there is other evidence for the defendants going to show that the witness who has so testified acted in bad faith in the transaction, and is not worthy of belief, and that the transfer was for another purpose without knowledge of insolvency, has no place in discussing the question as to whether there is a conflict of evidence as to the purposes for which the transfer was made.</p> <p>Id.—Evidence—Agreement of Creditors to Turn Over Business— Intent of Parties—Void Contract.—Evidence of an alleged understanding between the insolvent and the defendants, who were wholesale creditors selling him goods on credit with which to carry on business, that he would trade with no other house, and, that if, at any time, he failed in the business, or should cease to carry it on, he should turn the place and stock on hand over to the defendants, is only admissible on the question of the intent of the parties in making the transfer; but such agreement, if good between the parties, is void as against creditors, as being in direct contravention of the Insolvent Act, and constitutes no defense to an action by the assignee in insolvency to recover the property transferred in violation of the provisions of that act.</p> <p>Id.—Transfer not in Ordinary Course or Business.—A bill of sale of an entire business and stock in trade is not in the ordinary course of bu