10 S.W. 179 (Mo. 1888), State v. Mason

Citation:10 S.W. 179, 96 Mo. 559
Opinion Judge:Sherwood, J.
Party Name:The State to use of Kramer et al. v. Mason et al., Appellants
Attorney:Nathan Frank and Krum & Jonas for appellants. David Goldsmith for respondents.
Judge Panel:Sherwood, J. Ray, J., absent.
Case Date:December 20, 1888
Court:Supreme Court of Missouri

Page 179

10 S.W. 179 (Mo. 1888)

96 Mo. 559

The State to use of Kramer et al.


Mason et al., Appellants

Supreme Court of Missouri

December 20, 1888

Page 180

Appeal from St. Louis City Circuit Court. -- Hon Shepard Barclay, Judge.

The court gave the following instructions at the request of plaintiff:

"The court instructs the jury that the only question herein is whether the transfer of the property in controversy to plaintiffs was valid; the validity of no other transfer is at issue in this cause.

"1. A debtor in failing circumstances has a right to prefer one of his creditors to another, or any number of them to the exclusion of others. A mere preference alone is no fraud. A debtor, therefore, may lawfully pay, either in money or property of like amount, one or more of his creditors their demands in full and allow others to go unpaid in whole or in part; and if the creditor who receives such a preference does so only for the purpose of receiving his demand, his payment is valid, although at the time he receives it he may know his debtor owes other demands, and that he is, by such payment, receiving a preference; but if in accepting such payment or transfer of property therefor, the said creditor does not act solely with the purpose of obtaining a preference for himself, also thereby intends to aid the debtor in hindering, delaying or defrauding his other creditors (irrespective of the preference such creditor secures thereby), then such intent makes such payment or transfer of property fraudulent and void. If then, on the eighteenth day of April, 1883, Isaac Trepp was indebted to the Fourth National Bank of St. Louis, for the note of three thousand dollars, read in evidence, and to Kramer & Loth, or said bank, in the amount of the note for $ 529.06, and to Kramer & Loth on open account for $ 171.68, and on that day sold and delivered the goods in controversy to plaintiffs, in payment of his indebtedness to them, and in consideration that they would pay off and discharge the said three thousand dollar note to said bank, then, and in that case, in the absence of any intent on the part of the plaintiffs to do more than secure payment of Trepp's indebtedness to them and so protect themselves against their liability to said bank, in respect of said note, or notes, such sale of said property was a valid sale and did operate to pass the bill to them free from the claim or claims of other creditors of Trepp's.

"2. The jury are instructed that fraud is not to be presumed, but must be proven by the party alleging it, and therefore, in this case, by the defendants. And while it need not be established by direct and positive evidence, but may be proven by the facts and circumstances indicative of it, still mere matters of suspicion, which are not sufficient to satisfy the mind and conscience of its existence, do not establish it, and it should never be imputed, when the facts and circumstances upon which it is...

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