Chouteau v. Sherman

Decision Date31 March 1848
Citation11 Mo. 385
PartiesCHOUTEAU & VALLE v. SHERMAN.
CourtMissouri Supreme Court

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT & BRIGGS, for Appellant.

1. The court erred in refusing to instruct the jury that Sherman's false representations to his creditors, on the eve of his failure, were circumstances from which the jury might infer a fraudulent intent, unless rebutted. 2. The instruction given at the instance of defendant was erroneous and calculated to mislead the jury. Brooks v. Mayberry, 11 Wheat. 78. 3. The verdict was palpably against the evidence, and the court should have granted a new trial for that reason.

A. TODD, for Appellee.

1. The instruction given on behalf of appellee was correct, the only question in issue being whether he had disposed of his property fraudulently, so as to hinder and delay his creditors, and the only transfers shown being the sale of the store and the mortgage to Beach & Eddy. If these were therefore lawful, his misrepresentations to others about his pecuniary ability, or what he intended to do, no matter how false or willful, would not affect their legal character. 2. The instruction asked on behalf of the appellants, and refused, was properly refused--First, because the things enumerated in it do not make a prima facie case of fraudulent intent, and so to instruct the jury would be wrong; they are rather matter for argument than of law to the jury. Second, if they did, the instruction is too general for the issue, and is a mere abstract proposition. The issue is made upon the specific charge of having disposed of property fraudulently, as to his creditors, and this the appellants were bound to prove by acts of the kind charged. Having proved acts of disposition, then, if the principle of the instruction be correct, it should be confined to those acts. 3. The instructions given covered, according to the law of the land, the whole case, as made out by the appellants: only two acts of the disposition of the property were proved or pretended, and upon each of these the jury was properly instructed. 4. The motion for a new trial was properly refused: 1st, because the verdict was for the right party; 2nd, because there was evidence on both sides, and, so far as it was conflicting, the jury was the proper judge of both its weight and edibility; 3rd, the courts are and ought to be opposed to the granting of new trials in hard cases, those of flagrant charges, where there has been an acquittal; 4th, the affidavit of newly discovered evidence is insufficient. It does not show or aver due diligence. 6 Mo. R. 600. It is founded upon the hearsay of the affiant, and is of only one of the parties. It is not accompanied by the affidavit of the witness, nor cause shown for the want thereof. 1 Hall's R. 382; 6 Mo. R. 600. The evidence is merely cumulative and immaterial to the issue, or of a kind not likely to produce a different result. 10 Wend. 285; 5 Serg. & Rawle, 41. 5. If the evidence be fully examined, it only shows a case of preference.

MCBRIDE, J.

Chouteau & Valle instituted their action of assumpsit, by attachment against Sherman, in the Court of Common Pleas of St. Louis county. The affidavit charged the defendant with having fraudulently conveyed, assigned, concealed and disposed of his property and effects, so as to hinder, delay and defraud his creditors. The defendant pleaded in abatement, denying the truth of the affidavit, upon which issue was taken, a trial had, and verdiet for the defendant. The plaintiffs filed a motion for a new trial, which the court refused, and they excepted and appealed to this court.

On the trial, the plaintiffs offered evidence to show that just prior to the commencement of this suit the defendant sold out his entire stock of dry goods, &c., in St. Louis, to Beach & Eddy, by bill of sale, which recites that the defendant was indebted to them in the sum of near $7,000, and that the sale was made to pay them, as far as the goods could, at a price therein agreed. That the defendant also mortgaged to B. & E. a slave and household furniture, to secure the payment of a certain debt therein mentioned. That for several years prior thereto the defendant had been a large retail merchant in St. Louis, and at the time of the sale aforesaid was largely indebted to sundry wholesale merchants in St. Louis for goods purchased of them. That defendant had told some of his creditors that he owed but a small amount, and was fully able to pay all his debts, and did not intend to make an assignment. On the next day after the transfer to B. & E. defendant informed his creditors that, until the completion of the inventory, he supposed his stock of goods to be worth $10,000, and that B. & E., had offered him over $8,000 for them. That he had given up all to B. & E., and had nothing remaining for his other creditors. Shortly afterwards, defendant removed to Louisville, Ky., and thence to Cincinnati, Ohio. After his removal to the latter place some of his creditors called to see him, when he informed them that B. & E. were to have set him up again in business, but afterwards refused, and advised him to leave St. Louis, because of the excitement against him; that they would furnish him $1,000 to go away with. This he at first declined, but afterwards offered to take it, when they proffered to let him have $500, and, after that, $300, which latter sum he took, and removed with his family. That defendant's wife said in his presence that Beach induced her to assent to the mortgage of the slave, by telling her that if she did not the other creditors would sell the slave, but that he would keep the slave for her use, &c.

The defendant introduced evidence tending to prove that he owed B. & E., at the time of the sale of the goods, near $7,000, for goods and groceries purchased of them, and...

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12 cases
  • State ex rel. Robertson v. Hope
    • United States
    • Missouri Supreme Court
    • 22 Diciembre 1890
    ...instruction asked by the defendants was properly refused. Fraud is not to be presumed, but must be proved by him who asserts it. Chouteau v. Sherman, 11 Mo. 385; Dallman v. Renshaw, 26 Mo. 532, 544; Rumbold Parr, 51 Mo. 592, 598; Henderson v. Henderson, 55 Mo. 534, 555; Page v. Dixon, 59 Mo......
  • State ex rel. Christy v. Donegan
    • United States
    • Missouri Supreme Court
    • 6 Febrero 1888
  • Douglass v. Cissna
    • United States
    • Missouri Court of Appeals
    • 23 Marzo 1885
    ...7 Ala. 699; Green v. Tanner, 8 Metc. (Mass.) 411; Partete v. Harris, 26 Conn. 480; Bancroft v. Blizzard, 13 Ohio 30; Chouteau v. Sherman, 11 Mo. 385; Tripp v. Child, 14 Barb. 85; Goodrich v. Downs, 6 Hill 483. VII. The court erred in refusing judgment for plaintiffs after jury sworn and bef......
  • Douglass v. Cissna
    • United States
    • Kansas Court of Appeals
    • 23 Marzo 1885
    ... ... transfer.-- Bengert v. Burchert, 59 Mo. 80; ... Werden v. Hawes, 10 Conn. 50; Stevens v ... Chouteau, 11 Mo. 383 ...          II ... Under the statute this instrument was not a voluntary ... assignment for the benefit of creditors.-- ... Tanner, 8 Metc ... (Mass.) 411; Partete v. Harris, 26 Conn. 480; ... Bancroft v. Blizzard, 13 Ohio 30; Chouteau v ... Sherman, 11 Mo. 385; Tripp v. Child, 14 Barb ... 85; Goodrich v. Downs, 6 Hill 483 ...          VII ... The court erred in refusing ... ...
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