
    [No. 1793.
    Decided February 10, 1896.]
    Jacob Furth, Respondent, v. George H. Snell et al., Appellants.
    
    APPEAL — DETERMINATION OP PACTS BY APPELLATE COURT—WHEN BINDING ON TRIAL COURT.
    Where a cause has been reversed upon the ground of the insufficiency of the evidence to sustain the verdict, such decision stands as the law of the case upon a retrial in which the evidence presented is substantially the same as that upon which the cause had been first tried and determined.
    The refusal of the court to submit to the jury the question of the bona fides of a sale of personal property, when the issue is that it was in fraud of creditors, is not error when it has already been determined upon an appeal of the case upon a former trial, that the evidence, which was substantially the same in both trials, was insufficient to establish fraud. (Dunbar, J., dissents.)
    Appeal from Superior Court, King County.— Hon. T. J. Humes, Judge.
    Affirmed.
    
      Stratton, Lewis & Oilman, for appellants.
    
      Carr & Preston, and W. R. Bell, for respondent.
   The opinion of the court was delivered by

Anders, J.

On April 9, 1891, one Isaac Korn was the owner and in possession of a certain stock of drugs, medicines, druggist’s articles and store fixtures in the city of Seattle, and was engaged in business as a druggist. At that time he was indebted to the respondent in the sum of $500 for money previously loaned to him', which indebtedness was evidenced by a promissory note. Respondent was also the owner and holder of two other notes made by said Korn one, for $250 payable to the order of one Bories, and the other for $2,708 payable to the order of M. Korn, both of which had been indorsed and delivered to respondent by the payees in part payment of debts due from them, respectively, to him. On said day the said Isaac Korn executed and delivered to the respondent a bill of sale of said stock of goods and store fixtures, and the latter thereupon canceled and delivered to the former the notes above mentioned, and took possession of the property so conveyed to him and retained the possession thereof until dispossessed in the manner hereinafter stated. At the time this property was transferred to the respondent, Isaac Korn was indebted to the firm of Snell, Heitsehu & Woodward, appellants, in the sum of $2,877.43 on an account for merchandise sold and delivered to him by them. Thereafter, and on April 11, 1891, the said firm commenced an action in the superior court of King county against said Isaac Korn to recover the amount due them, and caused a writ of attachment to be issued and placed in the hands of appellant Woolery, the then sheriff of King county, who, by virtue of said writ, seized and took into his possession the above mentioned stock of goods and fixtures, as the property of said Isaac Korn. Under and by virtue of an execution issued upon a judgment for plaintiffs in that action, the attached property was sold by the sheriff and the proceeds applied towards the satisfaction of the judgment. After the levy but before the sale, the respondent notified the sheriff in writing that he was the owner of the property so levied upon, and demanded its return to him, which demand was refused. To recover the value of the property so taken and sold the respondent instituted this action.

-The complaint alleges facts sufficient to entitle the plaintiff to recover the value of the property therein described. The defendants in- their answer denied that plaintiff was the owner of the property described in the complaint or entitled to the possession thereof, and that it was of any greater value than $1,800; and alleged affirmatively, among other things, that the bill of sale by which the property was transferred to the respondent was made by Isaac Korn for the purpose of placing his property beyond the reach of his-creditors, and for the purpose of hindering, delaying and defrauding his creditors, and especially the defendants Snell, Heitschu & Woodward; and that the plaintiff accepted the bill of sale knowing that' it was made for the purposes aforesaid, with the intention and for the purpose of aiding said Korn to so hinder, delay and defraud his creditors; that after executing the bill of sale the said Korn remained in possession of the property and continued to sell the same and apply the proceeds thereof to his own use and benefit, and that the bill of sale was and is fraudulent and void as against the defendants. The plaintiff replied, admitting the execution of the bill of sale as alleged in the answer, but denying all other* new matter therein contained.

Upon the issues presented by the pleadings a trial was had to a jury, and at the close of the evidence the plaintiff presented to the court, as conclusions of fact from the evidence^ that the plaintiff was, on the 11th day of April, 1891, the owner, in possession and entitled to the possession" of the goods and chattels described in the complaint (less the soda fountain, safe, chandeliers and gas fixtures); that plaintiff had theretofore purchased the same from I. Korn, the then owner thereof, in good faith, paying therefor a consideration not less than the value thereof; that the defendants wrongfully, and without right and tortiously, took the same from plaintiff’s possession, on the 11th day of April, 1891, and then converted the same to their own use, and as a conclusion of law that the plaintiff 'is entitled upon the evidence to a verdict in his favor, in the amount of the value of the property taken, at the time of the taking, with interest thereon from April 11, 1891, to date, at the rate of eight per cent, per annum, said value to be determined by the jury from the evidence, and requested the judge to find and sign the same, and that the court instruct the jury to return a verdict for the plaintiff in accordance with said conclusion of law. The court signed the conclusions of law and of fact so submitted, and instructed the jury as requested by the plaintiff. The jury returned a verdict in favor of the plaintiff and against the defendants for $3,348, upon which verdict judgment was subsequently entered for that sum. To reverse "this judgment this appeal is prosecuted.

It is insisted with much earnestness by the learned counsel for appellants that there was some evidence properly presented to the jury which tended to support the allegations of fraud set forth in defendants’ answer, and that the court, therefore, erred in taking the question of the bona fides of the sale by Korn to the respondent from the jury. In support of this contention it is urged that the .action of the court was in contravention of §21 of art. 1, and §16 of art. 4, of the state constitution, which, respectively, provide that the right of trial by jury shall remain inviolate, and that judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. But we fail to perceive^-wherein the court violated those provisions of the' constitution. There is nothing in the record showing that the judge either charged the jury upon the facts of the case or deprived the appellants of the right to a jury trial. The only question here is whether there was any evidence upon which the jury could properly have found a verdict in favor of appellants, who necessarily assumed the burden of proof upon the issue tendered by their answer. Commissioners v. Clark, 94 U. S. 278-284. And, in determining that question, it is necessary to bear in mind a fact, which is not, strictly speaking, a matter of record, but which, nevertheless, cannot be overlooked or disregarded. It is this: This cause was before this court on a former occasion on appeal from a judgment in favor of the present appellants, and the judgment of the trial court was then reversed and the cause remanded for the reason that it appeared to us that the evidence was entirely insufficient to sustain the verdict of the jury. The case was retried in the court below and we are again called upon to determine practically the same question which was determined on the first appeal. The facts appearing in the record on the first appeal are quite fully set forth in the opinion of this court reported in 6 Wash. 542 (33 Pac. 830). Now, if the facts disclosed by the record now before us are substantially the same as those presented by the record on the first appeal, the former decision of this court established the law governing this case, and was a final adjudication and determination of the question now under consideration. Wilkes v. Davies, 8 Wash. 112 (35 Pac. 611); Brusie v. Gates, 96 Cal. 265 (31 Pac. 111); Thatcher v. Gottlieb, 59 Fed. 872; Frankland v. Cassady, 62 Tex. 418; Richmond St. R. R. Co. v. Reed, 83 Ind. 9; Lassing v. Paige, 56 Cal. 139; Heinlen v. Martin, 59 Cal. 181; Chaffin v. Taylor, 116 U. S. 567 (6 Sup. Ct. 518).

A careful examination of the evidence adduced upon the first trial discloses the fact that it was essentially the same as that given on the second, and therefore the court committed no error in declining to submit to the jury the question of the bona fides of the respondent in purchasing the property in controversy. That question had been previously determined, under a substantially similar state of facts, by this court, and that decision was conclusive upon the trial court.

It is claimed, however, by appellants that the notes which were surrendered by respondent to Isaac Korn upon the execution of the hill of sale and which were introduced in evidence on the second trial, but not on the first, supplied the “ missing link in the chain of evidence of fraud.” But we cannot assent to this proposition. These notes, we think, in no way contradicted the oral testimony in the case, though it is urged that the fact that the Bories and M. Korn notes were dated but three days before the execution of the hill of sale tends strongly to contradict the statement of the respondent that when he received them he had not conceived the idea of obtaining the stock of goods from Korn. But whether he had or had not such an idea at that time seems to us quite immaterial. The point is, did he purchase in good faith and for a sufficient consideration; and we think the evidence shows that he did. All that was said upon this point in the former opinion of this court is equally pertinent and applicable to the facts now before us, and nothing further, therefore, need be said concerning it.

Even if this cause were now hére for the first time we would be constrained to hold that the ruling of the trial court was fully justified by the law and the evidence.

The judgment will therefore be affirmed.

Hoyt, C. J., and Scott, J., concur.

Dunbar, J.

{dissenting). I am compelled to dissent from the conclusion announced by the majority. I think the introduction of the notes mentioned in the majority opinion relieved the case of the objection urged by this court in 6 Wash. 542 (33 Pac. 830). My own opinion is that the appellants made out a case of fraud; but whether they did or not, they certainly introduced competent testimony tending to prove fraud, and the province of the jury to weigh the .testimony should not have been interfered with by the court.  