Henry Billings Brown

“ With regard to the question of fraud in fact, there was considerable testimony, but it was insisted by the plaintiff that, so far as concerned the creditors who accepted the deed of trust, there was not a scintilla of evidence tending to show either direct knowledge of the fraud, or such information as would put a reasonably prudent person upon inquiry as to the existence of such fraud. ”

“ They agree to it, no matter in what form that may be done. Anything that shows that after being informed of what has been done, that, with a knowledge of these facts, they assent to it, or they agree to it, constitutes, and is, in fact, an acceptance. ”

“ While there is nothing in all this which proves either direct knowledge of the fraud to the accepting creditors, or positive knowledge of facts which necessarily put them upon inquiry, there is a strong probability that these creditors, who were all business men resident in Galveston, were possessed of the same information that others had regarding the failing condition of the firm. ”

“ They were all apparently interested in sustaining the deed, and in denying all knowledge of a fraudulent intent; and while the jury had no right to arbitrarily disregard the positive testimony of unimpeached and uncontradicted witnesses (Lomer v. Meeker, 25 N. Y. 361, 363; Elwood v. W. U. Tel. Co., 45 N. Y. 549, 553) , the very courts that lay down this rule qualify it by saying the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact. ”

“ As one of the witnesses stated: 'Rumors were afloat that they were slow in payments, owing largely to banks and individuals, credit refused them in some quarters, and generally that their business was not healthful. Inquiries as to the financial standing of the firm came from Northern and Eastern cities, local banks and firms. There were rumors in Galveston, general in their character, and discussed among brokers, banks, and merchants.' It is scarcely possible that these rumors could have escaped the ears of their local creditors. ”

“ It is not improbable that the peculiar relationship of the firm to Fellman was known to these creditors, as well as the fact that the assignment was intended primarily to protect Fellman, and secondarily to secure a settlement with the creditors upon terms favorable to the firm, and the subsequent return of the property to them. It is by no means impossible that they knew that the firm were making large purchases of goods on credit just before their assignment; that false representations had bee made to commercial agencies of their financial standing ”

“ In this case the plaintiff, Sonnentheil, was a citizen of the state of Texas; the defendant brewing company was a corporation created by the laws of Ohio, and a citizen of that state; and Dickerson a citizen of the state of Texas; but it also appears upon the face of the original petition that Dickerson was marshal of the United States for the Eastern district of Texas, and that he made the seizure of the goods in question through his deputy, John H. Whalen, and under a writ of attachment sued out by the brewing company against Freiberg, Klein & Co. as defendants. ”

“ The possession of the trustee consisted in his having the key to the storehouse in which the goods were situated, and in attending at the store some hours every day. He signed all the letters and checks, and kept control of the general cash. ”

“ Even negative evidence may sometimes have a positive value.
The test mony is this case indicates that as early as February, 1891, it had been discovered by Freiberg that the firm had lost considerable sums of money through Seinsheimer, one of the partners, and was in an embarrassed condition; and arrangements were made with the principal creditor of the firm, a kinsman of Freiberg, by which it was hoped to extricate themselves. ”