Brown v. Riley. 7. The jury are instructed, that if the defendant was an acting constable of Knox county and that as such constable he received said execution, that from the time he received the execution it was a lien upon all the personal property of Patrick Gibney in said county, and that the defendant had the right, and it was his duty as such constable, to levy the same on any personal property then owned by said Gibney in said county, and take the same away, and such levy and taking would not make a wrongful taking. Modification to instruction 7: "If the sale from Gibney to plaintiff was a fair and honest transaction, and possession was delivered to plaintiff before the execution came into defendant's hands, then the property belonged to plaintiff and was not subject to execution to pay Gibney's debts." Verdict for plaintiff. Damages one cent. The defendant then moved the court for a new trial, for the following reasons: 1. The verdict is against the law and evidence. 2. The verdict is against the instructions of the court. 3. The instructions are calculated to mislead the jury. 4. The court erred in giving the instructions asked by the plaintiff. 5. The court erred in refusing to give the instructions asked by the defendant. 6. The court erred in modifying the instructions asked by the defendant and giving the same so modified. 7. The court erred in refusing to give the instructions asked by defendant as asked. 8. The evidence was not sufficient to authorize a recovery. DOUGLASS & CRAIG, for Appellant. T. G. FROST, for Appellee. WALKER, J. The first question presented by this record is whether the sale of the property in controversy was fair and bona fide. The evidence tends to show that Gibney had previously executed a mortgage on the property to Moony, for the sum of three hundred and sixty dollars. And appellee purchased the property of Gibney, and he gave his note to Moony for two hundred and seventy-five dollars, and was to pay Gibney twenty-five. The property was delivered to appellee on the day of its sale, and remained in his possession from that time until the day upon which it was seized on execution. On that day, appellee employed Gibney to haul for him a load of wood with the wagon and team, and while in his possession the levy was Brown v. Riley. made. The execution bears date the 26th of February, 1858, and was placed in the hands of the officer on the day following, and the levy was made on the 8th day of March, 1858. There was some uncertainty, from the evidence, when the sale was made to appellee. Gibney testified that it was on the 24th day of February, 1858, while another witness testified that he heard when the levy was made, which was four or five days after the sale. Moony also testified that the sale was made some time in February, and might have been on the 24th day. Fitzgerald testifies that he was present at the sale of the property in February. If the sale and delivery was made before the execution came to the hands of the officer, there can be no doubt of its validity unless it was impeached for fraud. There is evidence in the case, justifying the jury in finding, that it was made before the execution became a lien. In case of such a conflict of evidence, it is for the jury to determine to which they should give the preponderance, and the court will not disturb the finding unless it is manifestly against the weight of evidence. Whilst a sale of personal property, without a delivery and change of possession, is fraudulent as to subsequent purchasers and creditors, if the sale is made in good faith, for a sufficient consideration, and possession is taken by the purchaser, it is valid to pass the title against all creditors not having a lien upon it. And a loan of the property by the purchaser to the seller, for a temporary purpose, or the employment of the seller to use the property in the pursuit of the business of the purchaser, will not avoid the sale, and render it liable to sale on execution issued after the purchase. It may be a circumstance to be taken into consideration by the jury, that the seller is subsequently found with its possession, and it is for them to determine whether such possession is bona fide, or is only colorable. In this case, there was evidence to justify the jury in finding that Gibney was in the employment of appellee and using the property in his business, and that the possession of the property was in appellee. To impeach a sale of property as fraudulent, as to purchasers and creditors, it is necessary to show that both the vendor and purchaser intended to hinder and delay creditors in the collection of their debts. It is not enough that such was the design of the seller, unless the purchaser participated in or had notice of such design at the time of the sale. Ewing v. Runkle, 20 Ill. R. 448. Whether such was the design of the parties to this transaction, was a question of fact for the determination of the jury, from all the circumstances in evidence on the trial, and they were justified by the evidence in finding as they have done. Even if the mortgage made by Gibney to Moony was fraudulent, and made to hinder and delay Gibney's creditors, a bona McAuley v. Carter et al. fide purchase of the property by appellee would not be affected by that fraud. To charge him with it, he should have had notice that it was executed for that purpose; and the jury could not infer from the mere fact that the mortgage had been so made, that the appellee was a party to or had notice of it. Such a notice should be established by other evidence. And if it were conceded that the mortgage was fraudulent, there was no evidence that appellee was either a party to the fraud or had any notice of it. There is no error perceived either in the giving or refusing the various instructions asked in the cause. Nor do we see any error in the modifications which were made to others before they were given. The instructions fairly presented the law applicable to the evidence in the case, and the evidence justified the verdict. The judgment of the Circuit Court is affirmed. Judgment affirmed. HENRY MCAULEY, Appellant, v. WILLIAM H. CARTER et al., Appellees. APPEAL FROM COOK. 22 53 152 515 44a 200 22 53 Where the parties to a building contract agree that the superintendent shall pass 158 439 upon the work, and certify as to the payments to be made, his decision is binding, unless fraud or mistake on his part shall be shown. Notice need not be given of the certificate obtained from the superintendent, where the contract does not require it. THIS is a suit for a mechanics' lien. The petition was filed in the Cook County Circuit Court, November 6, 1857, and sets forth that the petitioners entered into a written agreement with the defendant, bearing date the 25th day of April, A. D. 1856, whereby they agreed to build, finish and complete in a careful, skillful and workmanlike manner, to the full and complete satisfaction of W. W. Boyington, or his assistant superintendent, the mason work of a marble front dwelling to be erected on Michigan Avenue, so as fully to carry out the design of said work as set forth in the specifications (the specifications being attached to the contract) and the plans and drawings therein especially referred to, said plans, drawings and specifications being made part and parcel of the contract; and that the said McAuley, for and in consideration of the said Carter and Miller's furnishing 22 53 59a 108 59a 399 53 65a 296 McAuley v. Carter et al. all materials, and fully and faithfully executing the aforesaid, so as fully to carry out the design for the same as set forth by the specifications, and according to the true spirit, meaning and intent thereof, and to the full and complete satisfaction of W. W. Boyington, or his assistant superintendent as aforesaid, agreed to pay Carter and Miller therefor, $3,300; as the work advances the superintendent is to make out estimates of the work and materials furnished and inwrought into said building, and upon the presentation of a certificate of 85 per cent. on said estimate, the said McAuley is to pay the amount, and the balance in full on completion of the contract; provided the said superintendent shall certify in writing that they are entitled thereto. And by their third petition, they allege that they performed the work and furnished the materials according to the provisions of said contract, and fulfilled all the terms, conditions and requirements of said contract and specifications to be by them kept or fulfilled, and that said work was duly accepted; that there is due the petitioners, on account of work done under said contract, the sum of $700, and that that sum was duly certified to by W. W. Boyington, superintendent, previous to the commencement of this suit; and that they are entitled to the further sum of $189.50 for extra work, and that this sum was duly settled, and certified to by said superintendent. In the specifications which set forth the particular manner in which the work is to be done, are the following provisions: W. W. Boyington, or his assistant architects, are declared to be the superintendents of the work for the owner. Their duties will consist in giving, on demand, such interpretations either in writing, language or drawings, as in his judgment the nature of the work may require, having particular care that any and all work done and materials used for the work, be such as hereinafter described, and in giving on demand any certificates that the contractor may be entitled to, and in settling all deductions of or additions to the contract price, which may grow out of all alterations of the design after the same are declared to be contracted; also determining the amount of damages which may accrue from any cause, and particularly, decide upon the fitness of all materials used and work done-the contractor being bound in all cases to remove all improper work or materials, upon being directed to do so by the superintendent. The answer of McAuley admits the making of the contract, but denies that the petitioners did the work or furnished the materials to be done and furnished by them, according to the conditions and terms of said contract and specifications, specifying several particulars. McAuley v. Carter et al. O. L. Wheelock testified. Am an architect; assisted in drawing the plans and specifications for the building referred to in the contract handed to me. (Here were handed to the witness the contract and specifications above referred to.) I know of the plaintiffs going in and putting up the walls of the building, under this contract and specifications, upon the premises described in the petition. Contract and specifications read in evidence. The plaintiffs handed to the witness the following writing: "I hereby certify that I have examined the within bill, and checked such items as I was satisfied were correct and done under my supervision, and crossed out such items as I considered not correct. In accepting this work upon the condition of the contract, I must deduct the sum of fifty dollars for damages to the front, caused by not being suitably anchored to the wall of L. C. Clarke: the anchoring has since been done, but the blemish still remains. I hereby certify to so much of the within bill as amounts to.. $189.50 3,300.00 By deducting as aforesaid the sum of.. I have drawn certificates to the amount of two thousand and six hundred dollars $3,489.50 50.00 $3,439.50 2,600.00 $839.50 Respectfully submitted, W. W. BOYINGTON." The witness stated that he was acquainted with the handwriting of W. W. Boyington, and that the signature to the above paper was in his hand-writing. Plaintiffs offered to read in evidence the foregoing paper. Objection made and overruled, and exception taken. The defendant called a witness and offered to prove that W. W. Boyington, at the request of defendant, McAuley, gave notice to the plaintiffs of defects in the building of the walls of the dwelling-house, and that those defects have not been remedied. That the excavations under the building were not made of the depth required by the specifications. That the stone of the footing of the walls was not set into the earth as required by the specifications, and that the sand used for mortar for the walls was not clear beach-washed sand as required by the specifications. That the stone front of the building was not anchored as required by the specifications, nor were the iron anchors worked into and secured to the timbers as required by the specifications. That the stone front of the building was projected in consequence of the insufficient anchorage, and that thereby the front |