
    Sophia L. Bennett et al. v. Charles C. McDonald.
    Filed March 21, 1900.
    No. 10,422.
    1. Evidence: Influence-on Jury. The admission oí immaterial evidence which could not have influenced the minds of the jury is not reversible error.
    2. Sale of Property! Fraud: Rights of Creditors: Res Gestas: Conversations of Ven-dor and Vendee. In the trial of an action in which a sale of property is questioned as having been made in fraud of the rights of creditors, it is proper to receive in evidence conversations of the vendor and vendee in negotiating and consummating- contracts out of which arose the consideration for the alleg-ed fraudulent transfer.
    3.--: -: -: Evidence: Motives or Conduct of Parties. In the trial of actions in which a fraudulent transfer of property is alleg-ed, any evidence which reasonably tends to illumine the transaction and exiflain the motives or conduct of the parties is admissible.
    4. District Court: Judicial Notice: Contents of Brief. The district court will not take judicial notice of the contents of a brief filed by one of the litigants in this court when the cause was pending- here on appeal or error.
    5. Instructions Not Based on Evidence. It is not error to refuse instructions which are not based 'on the evidence.
    6. Evidence Sufficient. Evidence examined, and found sufficient to support the judgment.
    Error to the district court for Douglas county. Tried below before Dickinson, J. Rehearing of case found on page 234, 59 Nebr.
    
      Judgment below affirmed.
    
    
      Hall & MeOulloch, for plaintiffs in error:
    This was a transaction between relatives, and the burden of proving actual consideration, and that the transaction was in good faith, was upon McDonald, the purchaser. Plummer v. Rummel, 26 Nebr., 142; Steinkraus v. Korth, 44 Nebr., 777.
    
      W. W. Morsman and E. M. Morsman, contra,
    
    as to Iona fides of transaction between relatives and as to the burden of proof, cited: Thompson v. Loenig, 13 Nebr., 386; Fisher v. Herron, 22 Nebr., .185; Bartlett v. Oheeshrough, 23 Nebr., 767.
    A preponderance was sufficient. Stevens v. Garson, 30 Nebr., 550; Oarson v. Stevens, 40 Nebr., 112; McEvony v. Rowland, 43 Nebr., 97; Steinkraus v. Korth, 44 Nebr., 777. There is no authority for holding that the fact must be clearly proven. Such a rule requires more than a preponderance, and in a civil case, a preponderance is all that is required.
   Sullivan, J.

This is the second hearing of this case. The events in which the litigation had its origin are chronicled in the former decision (Bennett v. McDonald, 59 Nebr., 234), reversing the judgment of the district court for what was conceived to be error in the admission of testimony given by McDonald as a witness in his own -behalf. A further and more thorough examination of the record has given us a clearer and better view of the scope and purpose of the evidence held to have been erroneously admitted, and we are now convinced that we were entirely wrong upon both points decided adversely to the plaintiff.

In regard to the first point, it was said that the witness should not have been permitted to testify that he directed Conroy to invoice the stock in question at wholesale prices, because that fact was not relevant to the • issue, and may have induced the jury to believe that the transaction under investigation was an honest one. It may be cónceded that the evidence had no legitimate tendency to prove that the sale by Irish to McDonald was made in good faith and without any intent to hinder, delay or defraud the vendor’s creditors; but, considering tbe purpose for wbicb tbe testimony, was offered, and its absolute isolation from tbe other facts developed at tbe trial, we can not believe that it was heeded by tbe jury, or that it swayed them in the slightest degree in favor of tbe plaintiff’s theory of tbe case. Tbe invoice was made before tbe sale of tbe stock, and bad, so far as tbe record shows, no relation to, or connection with, that transaction. It was not received in evidence and tbe jury were not advised of its contents. It bad, in our judgment, no bearing whatever upon tbe good faith of either McDonald or Irish. Tbe questions propounded to McDonald were evidently designed to lay tbe foundation for other evidence touching tbe value of tbe property in controversy, at tbe time it was seized by Bennett under tbe order of attachment. Tbe foundation was not fully established, and tbe invoice was not used. It is possible, of course, that tbe jury may have regarded tbe direction given by McDonald to Conroy as evidence bearing upon tbe principal fact in dispute; but if so, they must have acted irrationally, and this we will not presume. Few verdicts would stand, if courts proceeded on tbe assumption that every item of irrelevant or immaterial evidence admitted during tbe trial of a cause was, through tbe perversity of tbe jury, permitted to tell in favor of tbe successful party.

We pass now to tbe consideration of tbe third and fourth assignments of error, wbicb were sustained by our former decision. These assignments challenge tbe correctness of some rulings of tbe court admitting in evidence certain conversations between McDonald and Irish. It is contended by counsel for tbe defendants that proof of what was said between tbe parties is mere hearsay; and* we were induced on tbe former bearing to so bold. A little reflection, with a fuller comprehension of tbe record, has satisfied us we were wrong. Tbe alleged consideration for tbe transfer in question was an indebtedness, emerging, it is claimed, out of a series of transactions between Irish, acting for himself, and McDonald acting as the agent of his wife. Whether this indebtedness was genuine or fictitious, real or simulated, was the nub'and core of the whole controversy. To show that it was real, and that it was the ultimate and honest product of all the dealings between the parties, it was proper that every one of their business transactions should be dissected and its elements laid bare. The balance claimed to be due from Irish to McDonald was the result of a number of contracts, settlements and agreements for the correction of errors. To prove these things, it was necessary to show what the parties said to each other in relation to the several matters at the time they were under consideration. Such evidence was clearly original, and was, in fact, the only means by which it could be proven that contract relations existed between them. “Where there is a series of transactions,” say the supreme court of Indiana, “bound together and resulting in one consummated contract, all that is said and done by the parties in the course of their negotiations, and as part of the consummated agreement, are competent in all cases where they are relevant and affect the question of consideration.” Colt v. McConnell, 116 Ind., 249, 255. Authorities in support of our conclusion that the rulings of the trial court upon this branch of the case were correct are not wanting. Kenney v. Phillipy, 91 Ind., 511, 513; Porter v. Walts, 108 Ind., 40; Paul v. Berry, 78 Ill., 158; Kimball v. Huntington, 10 Wend. [N. Y.], 675; Bradner, Evidence, 345.

There are some other assignments of error based on the admission and rejection of testimony, but they do not merit special consideration. In actions of this character, both parties are entitled to a wide range of evidence. Anything reasonably tending to illumine the transaction under investigation by explaining the motives or conduct of the parties is generally received, and given to the jury for what it is worth. In dealing with the evidence, the trial court exercised admirable judgment, and has made a record which, for its size, is singularly free from rulings of doubtful propriety.

It is claimed that the law of the case as settled in Bennett v. McDonald, 52 Nebr., 278, was disregarded at the trial. The brief referred to in that decision is not in the record before us, and the district court was not bound to take judicial notice of its contents. The court, therefore, did not err in making its rulings in accordance with the general law.

It is argued that the verdict is contrary to the ninth instruction, which informed' the jury that the written statements made by Irish to the McDonalds were not conclusive evidence that the business was profitable, and that it was necessary to show, in some way, an actual net gain. There was other evidence of profits. Besides, the jury might, under the instruction, base their finding on the written statements referred to, although regarding them as disputable evidence of the facts to which they bore witness.

The defendants tendered instructions whereby, they sought, to submit to the jury the theory that Irish and Mrs. McDonald were partners. These requests were properly refused, because there was no evidence tending to prove a partnership, and for other sufficient reasons which it is. needless to mention.

The contention that the verdict is not supported by sufficient evidence can not be sustained. Two juries have found in favor of the plaintiff. Both verdicts were sustained by the trial court, and we see no special reason to doubt the justice of plaintiff’s claim. The judgment heretofore rendered by this court is vacated, and the judgment of the district court

Affirmed.  