1. A bill of exceptions should only present the rulings of the
court upon some matter of law, and should contain only so much of
the testimony, or such a statement of the proofs made or offered as
may be necessary to explain the bearing of the rulings upon the
issue involved.
2. In an action against two defendants for fraudulently
obtaining the property of the plaintiff, the declaration alleged
that the fraud was a matter of prearrangement between them. The
fraud of one of the defendants was not contested, and as to the
other defendant,
held that his subsequent participation in
the fraud and its fruits was as effective to charge him to
preconcert and combination for its execution.
3. Where fraud in the purchase or sale of property is in issue,
evidence of other frauds of like character, committed by the same
parties, at or near the same time, is admissible.
4. Where two persons are engaged together in the furtherance of
a common design to defraud others, the declarations of each
relating to the enterprise are evidence against the other, though
made in the latter's absence.
5. Interest is not allowable as a matter of law in cases of
tort. Its allowance as damages rests in the discretion of the
jury.
6. Where a charge to the jury embraces several distinct
propositions, a general exception to it will not avail the party if
any one of the propositions is correct.
Claflin and others brought an action on the case against two
defendants, Lincoln and Mileham, for fraudulently obtaining the
property of the plaintiffs, alleging a combination and
prearrangement between them, by which Mileham purchased
goods to a large amount of different parties in New York, and among
others of the plaintiffs, upon false and fraudulent representations
of his means and business, and Lincoln sold them at St. Louis,
within a few days afterwards, at auction, for less than their cost
price, and appropriated the proceeds to his own use, the whole
thing being alleged to have been done with intent to defraud the
vendors of their property.
That
Mileham was guilty of the fraud was not seriously
controverted in the court below.
The principal defense turned upon the connection of the
Page 74 U. S. 133
defendant Lincoln with the fraudulent acts of Mileham. Lincoln
had been, it was alleged, a large creditor of Mileham, and, as he
and Mileham asserted, had obtained the goods from Mileham only by
his own superior vigilance, and to pay his own just debt. On the
subject of the fraudulent connection of the parties, the court
charged that the jury must be satisfied either that Lincoln was a
party to the original fraud, or that he became a party to it by his
own conduct and acts subsequently, with knowledge of the fraud; and
that this last, if true,
"would be the same as though he had
been a party to it originally." The court also admitted
evidence of other similar fraudulent transactions of the same
parties, with others, made about the same time. The court also
allowed declarations of each party, made in the absence of the
other, relating to the transaction in question, to go to the jury;
but it charged that whether these declarations would be evidence as
against both, would depend on the view the jury should take in
relation to the completion and consummation of the fraudulent
enterprise; that is to say, if they believed there was a fraudulent
concert between the two defendants, and that these declarations
were made during the progress and continuation of the enterprise,
what each said would be evidence against the other; but that if the
enterprise was ended and completed before the declarations were
made, then that what one said would not be evidence against the
other. As to damages, it charged that if the jury should find for
the plaintiffs, that the amount should be "the value of the goods
at the time they were purchased,
with interest from that
time."
The plaintiff excepted to the admission of the evidence above
mentioned, and to the charge of the court generally, but did not
except to it on the ground of a wrong instruction as to interest.
The bill of exceptions set out the whole evidence given on the
trial, with a long charge
in extenso, and occupied
ninety-six pages out of a hundred and twenty-six which composed the
record.
The plaintiff recovered judgment, and the defendant, Lincoln,
brought the case by a writ of error to this Court.
Page 74 U. S. 136
MR. JUSTICE FIELD delivered the opinion of the Court.
The bill of exceptions in this case is made up without any
regard to the rules in accordance with which such bills should be
framed. It is little else than a transcript of the evidence, oral
and documentary, given at the trial, and covers ninety-six printed
pages of the record, when the exceptions could have been presented
with greater clearness and precision in any five of them. In its
preparation, counsel seem to have forgotten that this Court does
not pass, in actions at law, upon the credibility or sufficiency of
testimony; that these are matters which are left to the jury, and
for any errors in its action the remedy must be sought in the court
below by a motion for a new trial. A bill of exceptions should only
present the rulings of the court upon some matter of law -- as upon
the admission or exclusion of evidence -- and should contain only
so much of the testimony, or such a statement of the proofs made or
offered, as may be necessary to explain the bearing of the rulings
upon the issues involved. If the facts upon which the rulings were
made are admitted, the bill should state them briefly, as the
result of the testimony; if the facts are disputed, it will be
sufficient if the bill allege that testimony was produced tending
to prove them. If a defect in the proofs is the ground of the
exception, such defect should be mentioned without a detail of the
testimony. Indeed, it can seldom be necessary for the just
determination of any question raised at the trial to set forth the
entire evidence given; and the practice in some
Page 74 U. S. 137
districts -- quite common of late -- of sending up to this Court
bills made up in this way -- filled with superfluous and irrelevant
matter -- must be condemned. It only serves to throw increased
labor upon us, and unnecessary expense upon parties. If counsel
will not heed the admonitions upon this subject, so frequently
expressed by us, the judges of the courts below, to whom the bills
are presented, should withhold their signatures until the bills are
prepared in proper form, freed from all matter not essential to
explain and point the exceptions.
The action in this case is brought to recover damages against
the defendants for fraudulently obtaining the property of the
plaintiffs. It differs materially from that of
Adler v.
Fenton, reported in 24th Howard which is cited to show that
the declaration discloses no cause of action. In that case, certain
creditors, whose demand was not due at the time, brought an action
against their debtors and others for an alleged conspiracy to
dispose of the property of the debtors, so as to hinder and defeat
the creditors in the collection of their demand, and this Court
held that the action would not lie. The decision proceeded upon the
ground that creditors at large have no such legal interest in the
property of their debtors as to enable them to interfere with any
disposition of it before the maturity of their demands. The
creditors in that case possessed no lien upon or interest in the
property of their debtors to impair or clog in any respect the
right of the latter to make any use or disposition of it they saw
proper. The exercise of that right, whatever the motive, violated
no existing right of the creditors, and consequently furnished them
no ground of action.
The case at bar is not brought upon the allegation that the
defendants have fraudulently disposed of their own property, but
that they have fraudulently obtained possession of the property of
the plaintiffs. It proceeds upon the theory that the title to the
goods never passed to the defendants, but remained in the
plaintiffs, from whom they were obtained by false and fraudulent
representations.
That such representations were made by the defendant,
Page 74 U. S. 138
Mileham, and that by means of them the goods were obtained, was
not seriously disputed at the trial. The principal controversy
turned upon the connection of the defendant, Lincoln, with the
fraudulent acts of Mileham. The declaration alleges that the fraud
was a matter of prearrangement between them, and their counsel
insisted that proof of such prearrangement was essential to a
recovery against Lincoln, but the court held that it was sufficient
to show that he subsequently, with knowledge of the fraud, became a
party to it; that subsequent participation in the fraud and its
fruits was as effective to charge him, as preconcert and
combination for its execution. In thus holding we perceive no
error. The character of the transaction was not changed, whether
Lincoln was an original party in its inception, or became a party
subsequently; nor was the damage resulting to the plaintiffs
affected by the precise day at which he became a co-conspirator
with Mileham. If, knowing the fraud contrived, he aided in its
execution, and shared its proceeds, he was chargeable with all its
consequences, and could be treated and pursued as an original
party. Every act of each in furtherance of the common design was in
contemplation of law the act of both.
On the trial declarations of the defendants were received, which
related not merely to the transaction which is subject of inquiry
in this action, but to similar contemporaneous transactions with
other parties. The evidence was not incompetent or irrelevant, as
contended by counsel. Where fraud in the purchase or sale of
property is in issue, evidence of other frauds of like character
committed by the same parties, at or near the same time, is
admissible. Its admissibility is placed on the ground that where
transactions of a similar character, executed by the same parties,
are closely connected in time, the inference is reasonable that
they proceed from the same motive. The principle is asserted in
Cary v. Hotailing, [
Footnote 1] and is sustained by numerous authorities. The
case of fraud, as there stated, is among the few exceptions
Page 74 U. S. 139
to the general rule that other offenses of the accused are not
relevant to establish the main charge. [
Footnote 2]
The declarations of each defendant, relating to the transaction
under consideration, were evidence against the other, though made
in the latter's absence, if the two were engaged at the time in the
furtherance of a common design to defraud the plaintiffs. The court
placed their admissibility on that ground, and instructed the jury
that if they were made after the consummation of the enterprise
they should not be regarded.
It is possible that the court erred in its charge upon the
subject of damages in directing the jury to add interest to the
value of the goods. Interest is not allowable as a matter of law,
except in cases of contract, or the unlawful detention of money. In
cases of tort, its allowance as damages rests in the discretion of
the jury. But the error, if it be one, cannot be taken advantage of
by the defendants, for they took no exception to the charge on that
ground. The charge is inserted at length in the bill, contrary to
the proper practice, as repeatedly stated in our decisions, and
contrary to an express rule of this Court. It embraces several
distinct propositions, and a general exception in such case cannot
avail the party if anyone of them is correct.
Judgment affirmed.
[
Footnote 1]
1 Hill 317.
[
Footnote 2]
See also Hall v. Naylor, 18 N.Y. 588, and
Castle v.
Bullard, 23 How. 172.
