Irwin Phillips & Co. v. Rule

• Decision Date: 30 April 1907
• Citation: 124 Mo. App. 525,102 S.W. 32
• Court: Missouri Court of Appeals
• Parties: IRWIN PHILLIPS & CO. v. RULE et al.

102 S.W. 32

124 Mo. A. 525

IRWIN PHILLIPS & CO. v. RULE et al.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. FRAUDULENT CONVEYANCES—EVIDENCE.

The sale of a large stock of goods in bulk by an insolvent, without invoice or appraisement, and made in haste, is some evidence from which a jury might infer fraud.

2. SAME—INSTRUCTIONS.

On the issue as to whether the sale of a stock of goods was made by an insolvent with an intent to defraud his creditors, an instruction that if such insolvent in making the sale intended to defraud his creditors, and the purchaser of the goods had sufficient knowledge of his fraudulent intent to put him on inquiry, then the jury might infer they were participants with him in the fraud, was erroneous, since, while it was a circumstance to be considered as tending to show knowledge of fraudulent intent, it was not a fact from which such knowledge can be inferred.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Action by Irwin Phillips & Co. against William P. Rule. Charles Keifer and others, interpleaders. From the judgment, interpleaders appeal. Reversed.

In 1902 W. P. Rule was engaged in the general mercantile business at Wyaconda, Mo. Charles Keifer was his security on promissory notes to the Citizens' Bank of Memphis, Mo., and the Gorin Savings Bank of Gorin, Mo., for about $2,000. Rule was also indebted to his clerk, W. J. Smith, for wages and borrowed money, in the sum of $625, for which he had given Smith his promissory note, bearing interest at 8 per cent. per annum. On October 15, 1902, Rule sold his entire stock of goods to Keifer and Boltz for a consideration of $5,250. Keifer agreed and assumed to pay the notes on which he was security for Rule, and Boltz agreed to pay Smith the $625 due him. The balance of the purchase price was to be paid in cash. Immediately after the sale Keifer and Boltz took possession of the goods and continued to sell them from the store theretofore occupied by Rule. In a few days after the sale and after Keifer and Boltz took possession, plaintiffs brought suit against Rule by attachment, and a portion of the goods sold to Keifer and Boltz was seized and attached as the property of Rule. Keifer and Boltz interpleaded for the goods attached. A trial of the interplea was had and resulted adversely to the interpleaders. The evidence shows that no invoice of the stock of goods was taken at the time or before the sale; but Boltz was in and about the store for ten days or two weeks before the sale, taking notes of the stock, and Keifer was in and about the store on several occasions just before the sale. Boltz took up the Smith note by substituting his own and paying the interest due. Interpleaders' evidence tends to show the amount of cash agreed to be paid was actually paid to Rule, who immediately thereafter disappeared from the country, leaving his family at Gorin. The only sign over the store was "Fleshman Building." This sign was not removed by interpleaders. After taking possession of the goods, interpleaders rearranged them, righted up the store, and gave out to the public that they were the owners and in possession. Defendant's evidence tends to show the stock of goods was worth about $6,000, and it casts some doubt on the fact of the payment of any cash to Rule by the interpleaders. There is also some evidence showing that the sale was made and a bill of sale prepared and signed after suppertime on the evening of October 15th.

John D. Smoot and Whitesides & Yant, for appellants. Chas. Hiller, B. N. Pettingil, and O. S. & G. M. Calihan, for respondent.

BLAND, P. J. (after stating the facts).

1. The interpleaders, at the close of all the evidence, moved the court for a peremptory instruction to the jury to find for them. Interpleaders contend that this instruction should have been granted. We think not. The circumstances of the...