ing of the motion for a directed verdict, the principle invoked does not apply. 3 Harv. L. Rev. 162. necessary later in passing upon questions presented concerning it. In order to be a defense to the action, as an act of God, the The plaintiff used the deposition of George damages suffered by the plaintiff must have T. Todd, who testified that he had been in been "proximately due, directly and exclucharge of the United States Weather Bureau sively, to natural causes without human inin Albany for over 10 years, and was thus tervention, which could not have been prein charge at the time of this flood; that the vented by any amount of foresight, pains, and object of the office there is to forecast the care, reasonably to be expected." Eagan v. weather and flood conditions in that vicinity, Central Vermont Ry. Co., 81 Vt. 141, 69 Atl. and to give the forecasts to the public; that 732, 16 L. R. A. (N. S.) 928, 130 Am. St. Rep. during the period of the flood in March, 1031. But if the damages were not due exclu1913, his forecasts were published through sively to such natural causes, in other words, daily weather maps, also in daily newspapers if the negligence of the carrier, as an active published in Albany, every effort being made and co-operative cause, mingled with the opto reach business and manufacturing inter-eration of the natural causes, the injury was ests of all kinds in the vicinity, and the same not, in a legal sense, the act of God. So if the were telephoned to the Troy Times, a daily newspaper published in Troy; that water freshets there can be forecasted 24 to 36 hours in advance; that such forecasts are formulated from information received from river gaging stations in the upper tributaries of the Hudson and the Mohawk rivers, and are very correct; that on the morning of March 26, 1913, he sent out forecasts of the freshet, and at 10 in the forenoon of the 27th he sent out a forecast of a severe flood which would probably reach a height of 25 to 26 feet at Troy, and telephoned the same to the office of the Troy Times; that the height reached was even greater than forecasted, it being at Troy 29.4 feet; that deponent was at the telephone all day of the 27th, answering inquiries in regard to the flood; that the N. Y. C. usually called him by telephone during periods of high water, numerous times a day, but he could not swear that it called him on that day, nor could he remem-vator of the defendant occurred without its ber whether he furnished the company a map prior to this flood, but thought he did to some man in the company, though he did not know who he was; that at the time of this flood and before the N. Y. C. generally called up by telephone or sent some man to the office. The evidence tended to show that Freight Agent Wadsworth and Yardmaster Lloyd knew that for a score of years or more the United States government had maintained a weather bureau and forecaster at Albany, but that neither of them took any steps to ascertain from the forecaster at the time of this flood the probabilities as to the height the waters of the Hudson might reach or when; that the superintendent of the N. Y. C. had his office in Albany, and from there directed operations in Troy, but gave no directions on March 27th, looking to the protection of freight or freight cars in the yard at that place, from the consequences of the pending flood. [7, 8] The foregoing is a general statement of the condition of things at Troy on March 27th, and of the actions and doings of the carrier last named, its agents, and servants, material to this action. Greater detail in injury which the flood occasioned might have been avoided or prevented by human prudence, foresight, pains, and care, reasonably to be expected from the carrier, but not exercised by it, the defendant is responsible. Nugent v. Smith, 1 C. P. D. 423, 1 Eng. Rul. Cas. 218; Smith v. Western Railway, 91 Ala. 455, 8 South. 754, 11 L. R. A. 619, 24 Am. St. Rep. 929; Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235; Michaels v. New York Cent. R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415; Wolf v. American Express Co., 43 Mo. 421, 97 Am. Dec. 406; Baltimore & O. R. Co. v. Keedy, 75 Md. 320, 23 Atl. 643; Memphis & c. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Hecht v. Boston Wharf Co., 220 Mass. 397, 107 N. E. 990, L. R. A. 1915D, 725, Ann. Cas. 1917A, 445; 4 R. C. L. 719. In Davis v. Central Vermont R. R. Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852, it was found that the loss by fire of the grain while in the ele negligence; but that, if the defendant had acted upon the orders of the plaintiff and removed the grain from the elevator as soon as the trial court found it should have done, the grain would have been removed before the fire. This court said the proximate cause of the loss was the fire, and the delay in moving the defendant was not responsible. In disthe grain the remote cause, and consequently cussing the question, however, the court stated that if the defendant could have protected the property from fire, after it knew the fire dence and diligence, and did not, it would existed, by the exercise of reasonable pruhave been liable for its failure to use this measure of prudence and diligence to protect the property, thus recognizing the rule laid down above. [9] Freight Agent Wadsworth was a subscriber for the Troy Times, and read it regularly about 7 p. m. each day. This paper is issued amout 4 p. m. He saw and read what the issue of March 26th gave as the forecasts concerning the high water made at the weather bureau, but he did not read the issue of the 27th; he being called from home the 26th, which he read, gave as coming from, containing it be not placed where it was on Forecaster Todd, the following: "The river is beyond its banks along the lowlands, but no great danger is anticipated, because there is no ice to hamper the flow." In argument, after making reference to this prediction, and to observations made by Wadsworth and Lloyd about 4:30 p. m. on the 27th as to the height and condition (stationary or otherwise) of the water, it is asked whether Wadsworth did not have a right to rely on the foregoing prediction of Todd. But it cannot be said, as a matter of law, that he did. In the first place, the observations made by him and Lloyd about 4:30 p. m. of the 27th were in point of time some two hours after the water became so high that, according to the evidence, the car containing the plaintiff's goods could not be removed from track No. 2; hence these observations afford no basis for the argument. As to the prediction, the rain was continuing in the forenoon of the 27th, and the water was still rising. Both of these facts were known to the freight agent and the yardmaster. The conditions were such that a new forecast was sent out from the Weather Bureau at 10 in the forenoon, and the forecaster remained at the telephone all day, answering inquiries respecting the flood. The predictions as sent out at the hour last named were of a severe flood in which the water would probably rise at Troy to a height of 25 to 26 feet. At the latter height, the water would be some inches about the floor of a freight car standing where the car of lime stood, and therefore high enough to enter the car to some extent; track No. 2, in such close proximity to the car loaded with lime, at the time it was placed there, or if put there in the first instance, that it be removed to some safer place in the yard while the condition of the water was such that it could yet be done. The motion for a directed verdict was properly overruled. [11, 12] Many exceptions were taken to the admission of evidence, which might better have been presented for review, in groups, resting upon the assumption that the ruling as to one would be the ruling as to all involving only the same legal question. Exceptions of the first group are to the reception in evidence of parts of certain articles printed in newspapers published in Albany and in Troy. In connection with the testimony of deponent Todd, the plaintiff offered in evidence certain parts of a news article in the Albany Evening Journal, a daily newspaper published at Albany, for March 26, 1913, reading as follows: * "March 26, 1913. River will rise to nearly 16 feet. At noon it was 12.1 feet above sea level At 8 a. m. yesterday the stream was 7.9 feet and will continue to rise during the day. * above the sea level. At 8 a. m. to-day it was 10.8 feet. At 10:30 a. m. it had risen to 11.7 feet, and at noon to 12.1 feet. Forecaster George T. Todd said that he believed the river will rise to 15 or 16 feet by to-morrow morning. He bases his statement on the heavy rainfall last night throughout the Mohawk Valley and on the Hudson watershed. Tribes Hill during the 24 hours ending at 8 a. m. had 1.10 inches of rain, and the average through the Mohawk Valley was about that amount." This evidence was offered "solely as showthe floor of a freight car, as before seen, being the availability of information and the ing substantially 4 feet above the top of the rails which are 5 inches high. The predictions made by Todd on the 26th; the knowledge of the freight agent and the yardmaster concerning previous high waters with reference to coming into that yard; the conditions as they saw them throughout the forenoon and until 2 p. m. of the 27th; the known public means provided by law for ascertaining and recording probabilities as to flood conditions in that vicinity, and giving information relative thereto; the availability of such information, and whether resort thereto would reasonably be expected from a careful and prudent man-these were all matters to be considered with the other evidence in the case in determining the question of proximate negligence on the part of the carrier. publicity given to these forecasts as to the probable rise in the river." Objection thereto was made on several grounds, one of which was, that there was no evidence in the case tending to show that the defendant or any of its connecting carriers in question had any knowledge of the contents of that paper. In admitting the evidence, the court told to the jury that it was not proof of the facts stated in the paper, but was introduced to show what information was available to the de fendant if it had sought for it, as bearing on the question of whether the defendant, if it did not, ought to have known it, or ought to have made inquiry for itself and for the protection of the property it had in charge. Exception was saved. The deponent testified to giving to that newspaper the forecasts and information, the substance of which was used as the basis of the portion of the paper received in evidence. This, however, was not enough to render that part of the printed ar [10] We think the evidence tended to show such negligence in failing to protect the plaintiff's property after the officers, agents, and servants of the carrier knew, or in the exercise of the care and diligence of a care-ticle legitimate evidence, even for the limited ful and prudent man ought to have known, of the dangers threatening from the impending flood. And it was for the jury to say on all the evidence whether the prudence, foresight, care, and skill, reasonably to be expected from the carrier for the preservation of this property, did not require that the car 102 A.-4 purpose specified. It had already been shown beyond question that the N. Y. C., and its agents and servants having supervision or charge of the matter of freight traffic at Troy, knew of the existence of the United States Weather Bureau at Albany, and of the maintenance there of a weather forecaster. The company and its said agents and serv-, it did not take steps to procure such informaants had knowledge of the rise of water at tion on March 27th before the water had risTroy from day to day until it reached the en so high that effective measures for the proportions of an unprecedented water fresh-protection of the plaintiff's property were no et, and during all that time had knowledge longer possible? Such facts afford no reasonthat forecasts as to probabilities could be had able presumption or inference as to the fact by application at the Weather Bureau by of negligence in failing seasonably to take telephone or otherwise. This being so, on such measures, and the reception thereof in what principle was the article printed in the evidence was harmful error. 1 Greenl. Ev. newspaper named admissible without evi- § 52; Lucia v. Meech, 68 Vt. 175, 34 Atl. 695. dence that it had been seen and read by some Since a reversal must be had because of erone or more of the aforementioned agents or rors in rulings relating to the admission of servants of the railroad company? How did the evidence show that company, or its agents sel are passed without further notice. evidence, the exceptions to argument of counand servants, the availability of the information regarding the probable rise of the water, unless such article was notice to them of what was contained in it? The law does not give such printed articles in a public paper the effect of constructive notice. At most they can be only actual notice, and not that unless they are read. Without being read, they have no more force as notice than any fact orally and publicly spoken at a place where the person claimed to be affected was not present. The reception of the part of the paper was therefore error. State v. Alpert, 88 Vt. 191, 92 Atl. 32; Beltzhoover v. Blackstock, 3 Watts (Pa.) 20, 27 Am. Dec. 330; Lincoln v. Wright, 23 Pa. 76, 62 Am. 'Dec. 316; Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 Atl. 244, Ann. Cas. 1912D, 997. [14] Many exceptions were taken to the charge, errors therein being asserted, both of omission and of commission. But the questions thus raised are in effect covered by what we have said upon the motion for a directed verdict, except two: Nos. 3 and 12. As to the former, defendant excepted to the court's failure to charge specifically that the burden was on the plaintiff to show that the negligence of the N. Y. C. mingled with the act of God as an operative and proximate cause. But the court charged fully and carefully in this respect as requested. The jury were instructed that it had been argued by counsel for plaintiff and conceded by counsel for defendant that on all the elements necessary for the plaintiff's recovery, the burden was on the plaintiff, explaining the meaning thereof-following this by calling attention to the fact that the court had already said that in order for the plaintif to recover it must establish the fact that the proximate cause, or contributing cause, of the injury was the negligence of the defendant. This exception is without force. [13] Exceptions of the second group were taken on the ground of immateriality, to testimony given by the same deponent as to the custom at the office of the Weather Bureau, with respect to giving publicity to the forecasts there made; the testimony being that [15] The latter of these two exceptions was flood predictions are usually printed on daily weather maps which were mailed to about to the failure of the court to charge that, in 40 business houses and public places in Troy determining whether the N. Y. C. acted as a at the time of the flood in question; that prudent man in respect to the safety of plainflood predictions were given by telephone to tiff's property, they should take into consida list of merchants who are in the flood dis-eration the duties and responsibilities of that trict in Albany, and by warning and tele- carrier to its other patrons who had properphoning to the Troy Times; that the Cham-ty in its yard and custody. Thereon it is ber of Commerce at Albany had received forecasts since 1905, and probably prior thereto; that Bradstreet Company received them at Troy-these are some of the instances where the same question was raised. We need not consider when, if ever, evidence of such service to, or relations with, third persons may properly be received. In the undisputed circumstances shown by the plaintiff that during periods of high water the N. Y. C. usually called the forecaster by telephone numerous times a day, and at the time in question generally called him up by telephone or sent some man to the office the Weather Bureau, with respect to obtaining information regarding probabilities, what force could the collateral facts shown have in the case other than to excite prejudice in the minds of the jurors against that railroad company because said that the evidence shows that every month that railroad company handles 15,000 freight cars coming in and going out of the Adams street yard; and it is argued that as a prudent man, the company had other things to attend to besides plaintiff's car of screens. Yet it appeared further that on March 27, 1913, only about 200 such cars were handled there. It is enough to say of this exception that there was no evidence tending to show any act done, or omitted to be done, relative to the preservation of the plaintiff's goods, because of any duties or responsibilities of the carrier to other patrons of the class mentioned in the exception. There can be no error in failing to charge in a manner not applicable to the evidence. Hyde v. Swanton, 72 Vt. 242, 47 Atl. 790; Sherwin v. Rutland R. Co., 74 Vt. 1, 51 Atl. 1089; Smith v. Central Vermont Ry. Co., 80 Vt. 208, 67 Atl. Trust Company against Charles H. Knight, 535. Patrick L. Stuart, and Anna H. Stuart, trusJudgment reversed, and cause remanded. tees. Judgment for plaintiff, and defendants bring exceptions. Affirmed. 1. FRAUDULENT CONVEYANCES 182(4) Real estate is not included in the enumeration of "goods, effects, or credits" within P. S. 1723, providing that a holder of property under a conveyance or title void as to creditors may be held as a trustee. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Goods.] 2. FRAUDULENT CONVEYANCES 155 - CONSIDERATION-INTEREST OF PARTIES. A conveyance without valuable consideration is fraudulent in law, and the good faith of the grantee is immaterial; but where there is a valuable consideration, there must be a fraudulent intent on the part of both the grantor and grantee. 80 - CON UNDERTAKING TO SUPPORT 3. FRAUDULENT CONVEYANCES A conveyance in return for a promise to SOLVENCY. 57(3)-IN There is no difference between a sale which leaves nothing and a sale which leaves a paltry and insufficient amount for creditors. 5. FRAUDULENT CONVEYANCES 158(1) CONSIDERATION-SUPPORT. Though the consideration where a person conveys property in return for support for life is valuable, it is wanting in good faith as to creditors; the character of the transaction being such as to put a grantee or vendee upon inquiry. 6. FRAUDULENT CONVEYANCES 182(2) NOTES CONVERSION LIABILITY OF AS SIGNEES. Where assignees of a note, transferred in fraud of creditors, surrender such note to the makers in return for part money and part a well secured note in their own names, they were liable to the creditors for the entire amount, money and notes, disenthralled of the provisions as to times of payment in the original notes or in the notes which they chose to take in accomplishing the conversion. 7. FRAUDULENT CONVEYANCES See, also, 99 Atl. 633. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, for plaintiff. M. C. Webber, of Rutland, for trustees. HASELTON, J. The Stuarts were adjudged chargeable as trustees in this suit, and bring exceptions. Our statute provides that if a person summoned as a trustee has in his possession goods, effects, or credits of the defendant, which he holds by a conveyance or title void as to the creditors of the defendant, he may be adjudged a trustee on account thereof, although the defendant could not have maintained an action therefor. P. S. 1723. July 22, 1915, the principal defendant, Charles H. Knight, conveyed to the trustees certain real estate, and personal property connected thereWith, for the consideration of his life support by the trustees, and on the same day he assigned to the trustees a note held by him against one Leslie and his wife, the makers thereof. The conveyance was of property amounting in value to about $3,000. There is some discussion as to the amount of property reserved, but the commissioner's report finds, upon sufficient and admissible evidence, that the property reserved was a second mortgage of little or no real value at the time of the conveyance, and some hotel furniture then subject to attachments, and afterwards sold on execution for $149.70, to satisfy a judgment in one of the then pending suits. The commissioner finds that Knight had no valuable equity in the personal property reserved. The debt which was the basis of this suit was due and owing prior to the claimed fraudulent conveyance, and at that time amounted to upwards of $1,400. [1] It is not claimed that, in any event, the trustees can be held chargeable on account of the real estate that Knight conveyed to them, for real estate is not included in the enumer182(2)-IN ation of "goods, effects, or credits." P. S. MONEY 1723; Prout v. Vaughn, 52 Vt. 451, 459; Smith v. Hyde, 36 Vt. 303, 307. The first question of importance that we encounter is whether the persons, here summoned as trustees, hold goods, effects, or credits of the defendant by virtue of a conveyance or title void as to his creditors. CONSIDERATION OF LIFE SUPPORT ACTUALLY EXPENDED FOR SUCH Support. Where property is conveyed in fraud of creditors, and suit is brought against the grantee to whom the property was conveyed in promise of life support of the grantor, the money spent by such grantee in support of the grantor will not be considered in the amount owing to the creditors by the grantee, where it appears that the income from the property exceeded the amount of the money so spent. [2, 3] It is well settled that a voluntary conveyance, that is, a conveyance without valExceptions from Rutland County Court; uable consideration, is fraudulent in law as E. L. Waterman, Judge. to existing creditors for whom no ample proAction by the Ludlow Savings Bank & vision has been made, and the good faith of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the grantee is in such case immaterial. On, that they cannot be held chargeable on acthe other hand, speaking generally, to make count of the note turned out to them by the a conveyance for a valuable consideration | defendant; that treating the assignment of fraudulent, there must be a fraudulent intent the note as void as to the creditor bank, its both on the part of the grantor and the gran- remedy, so far as the note is concerned, is tee. Root v. Reynolds, 32 Vt. 139; Leach v. against the Leslies, the makers of the note, Francis & Wood, 41 Vt. 670; Nichols v. Nich- who, and not the Stuarts, are indebted to the ols, 61 Vt. 426, 18 Atl. 153; Lynch's Adm'r v. principal defendant thereon. But the trusMurray, 86 Vt. 1, 83 Atl. 746. But the mat- tees, the Stuarts, realized on the note turned ter of the conveyance by one of his property out to them, by surrendering it and taking for self-support stands on a separate and dis- therefor, in part money, and in part a welltinct ground. In Knowlton's edition of Bige- | secured note, running to themselves. To such low on Fraudulent Conveyances (1911), it is a situation the case of Smith v. Wiley, 41 Vt. said that the courts are not agreed as to the 19, is applicable. The argument for the truseffect of conveyances with an undertaking by tees there was substantially that made for the grantee to support the grantor, but that the trustees here. But there Judge Barrett, in various states such an undertaking does who tried the case in county court, held the not make "the valuable, or rather the valu- trustees liable both for money received and able and bona fide, consideration" required to notes taken as their own, and this court, in cut off claims of the grantor's creditors. One an opinion by Chief Justice Pierpoint, affirmof the cases referred to is our case of Churched the judgment, saying, after a reference to v. Chapin, 35 Vt. 223. In that case Judge Peck said: "The agreement for support for life is not of such a character as will sustain the deed, if the creditors are thereby deprived of the means of collecting their debts. It is true that as between the parties to the deed it is a valuable consideration, and in this respect a deed founded on it differs from a gift; but as to creditors it is not different from a deed of gift. It has long been settled that a party cannot, either by gift, or in consideration of an agreement for support for life, convey his property without reserving what is amply sufficient for the payment of his then existing debts." the commissioner's report: "The fact being established that the trustee has taken these notes, and appropriated them to himself, and converted them to his own use, he must stand in respect to them and the principal debtor, in the same position that he would if he had actually received the money upon them." We are satisfied with this decision, and it applies here. In converting to their own use the notes turned out to them by Knight, the trustees held the proceeds of the transaction, to answer the claims of the existing creditors, disenthralled of the provisions as to times of payment in the original notes or in the notes which they chose to take in accomplishing the conversion. [7] It appears that the trustees had paid out about $150 for the maintenance of Knight during a period of some months, but it also appears that they had received more than that amount in rentals from the real estate conveyed to them in consideration of Knight's support, and so there is no occasion for con [4, 5] This is the doctrine of Crane v. Stickles, 15 Vt. 252, for though in that case there was a sale of all one's property in consideration of support, there is, in law, no difference between a sale which leaves nothing for creditors, and a sale which leaves a paltry and insufficient amount for existing creditors. Woodward v. Wyman, 53 Vt. 645, 647. There appears to be some confusion in our cases, as is noted in Wilson v. Spear, 68 Vt. 145, 34 Atl. 429, but the doctrine clearly enunciated by Judge Peck in Church v. Chapin, above re-sidering such expenditures as affecting the ferred to, is undoubtedly the law of this state. And, in general, a transfer of property in consideration of future support is invalid as to creditors, unless the grantor retains property ample for the payment of his debts. 12 R. C. L. 546; Davidson v. Burke, 143 Ill. 139, 32 N. E. 514, 36 Am. St. Rep. 367; Annis v. Bonar, 86 Ill. 128; Rice v. Cunningham, 116 Mass. 466. Though the consideration is valuable it is wanting in good faith as to creditors, and the character of the transaction is such as to put the grantee or vendee upon inquiry. Bigelow, Fraudulent Conveyances, 54S. [6] But the trustees contend in argument amount for which the trustees are chargeable under P. S. 1723. The trustees excepted to the findings of the commissioner as to the value of the property reserved by Knight, on the ground that the findings were not warranted by the facts reported, nor by the evidence which is referred to. But it is enough to say in this regard that the exception is illgrounded. Some evidence bearing on these findings was received under objection and exception, but so far as any such exception is relied on, it is clear that the evidence was of inferential value, in connection with other evidence. Judgment affirmed |