11 S.W. 760 (Mo. 1889), 4254, Hard v. Foster

Docket Nº:4254, 4255, 4256
Citation:11 S.W. 760, 98 Mo. 297
Opinion Judge:Brace, J.
Party Name:[No. 4254.] Hard et al., Appellants, v. Ralph R. Foster et al. [No. 4255.] Chase et al., Appellants, v. Chas. G. Foster et al. [No. 4256.] Chase et al., Appellants, v. Ralph R. Foster et al
Attorney:Hough, Overall & Judson for appellants Hard et al. Fisher & Rowell and James O. Broadhead for appellants Chase et al. Frank K. Ryan and Chester H. Krum for respondents.
Case Date:June 10, 1889
Court:Supreme Court of Missouri

Page 760

11 S.W. 760 (Mo. 1889)

98 Mo. 297

[No. 4254.] Hard et al., Appellants,


Ralph R. Foster et al.

[No. 4255.] Chase et al., Appellants,


Chas. G. Foster et al.

[No. 4256.] Chase et al., Appellants,


Ralph R. Foster et al

Nos. 4254, 4255, 4256

Supreme Court of Missouri

June 10, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer, Judge.


Hough, Overall & Judson for appellants Hard et al.

(1) Ward & Foster saw fit to make Ralph R. Foster their sole agent to protect their interests. They could have selected some one else, but having selected him they are bound by his acts and by his knowledge and by his intent. The employment of Mr. Ryan does not help the matter as he was the attorney of Ralph R. Foster. Ruggles v. Co. of Washington, 3 Mo. 496; Carson v. Cummings, 69 Mo. 331; Veazie v. Williams, 8 How. (U. S.) 134; Davis v. Krum, 12 Mo.App. 287. (2) The delay in proceeding with the sale under the levy is itself an evidence of fraud. It has been held in numerous cases that where the sheriff under instructions of the plaintiff delays sale under a levy, such delayed levy is postponed to a subsequent levy. See Kneeland on Sheriffs, p. 444; Wise v. Darby, 9 Mo. 131. (3) Under the rule laid down in Phelps v. McNeely, 66 Mo. 554, this confession of a partnership judgment for an individual debt must be held fraudulent and void as to partnership creditors, irrespective of the equity of the other partner. Ackley v. Staehlin, 56 Mo. 561; Regus v. Batchelor, 12 Pet. 220. (4) The confessed judgment of Ward & Foster is shown by the proof to be excessive and erroneous, first, in the amount of interest, aggregating $ 1,152.88, and, second, in an erroneous charge of four hundred dollars in the item of February 20, 1883, which is charged in the schedule as $ 702.76, when it appears from the testimony of Ward it should have been only $ 302.76.

Fisher & Rowell and James O. Broadhead for appellants Chase et al.

(1) The confession or statement, upon which this judgment in favor of Ward & Foster v. R. R. Foster & Co. was entered, was not sufficient to authorize the entry of the judgment and is not sufficient to support it. The facts out of which the alleged indebtedness arose are not sufficiently stated nor precisely stated. And the statement does not show the amount confessed to be due as required by the statute. The schedule is not part of the statement. R. S. 1879, sec. 3697; McHenry v. Shippert, 2 Mo.App. 383; Byran v. Miller, 28 Mo. 34; Moody v. Townsend, 2 Abb. 378; McDowell v. Daniels, 38 Barb. 143; Larning v. Carpenter, 20 N.Y. 447. (2) This statement being defective, the judgment confessed is fraudulent and void as to other creditors. Kennedy v. Leame, 9 Iowa, 580; Bernard v. Douglass, 10 Iowa 370; Edger v. Greer, 7 Iowa, 141; Chappel v. Chappel, 12 N.Y. 215; Vanbech v. Sherman, 12 How. Prac. 472; Dunham v. Westerman, 3 Smith, 9; Bank v. Jamison, 15 How. Prac. 41; Weitemberger v. Edgerton, 30 Barb. 187; Lawless v. Heackett, 16 John. 149; Dunham v. Waterman, 17 N.Y. 9; Schoolcraft v. Thompson, 7 How. Prac. 446; Yandall v. Firm, 23 Barb. 652. (3) Interest was computed in favor of Ward & Foster in the confession or statement, and went to swell the judgment to a greater sum than was due them. The suit is on an account; no demand had been made and no interest was, therefore, due; there is included in the confession four hundred dollars more for disbursement on account of cattle, than was due, as appears from Ward & Foster's books, and for these reasons judgment cannot stand as against creditors. R. S., sec. 2723; Stone v. Evans, 38 Mo. 461; Phillips v. Laclede Co., 76 Mo. 68; Thompson v. School District, 71 Mo. 501; Southgate v. Railroad, 61 Mo. 95; Ayers v. Hayes, 13 Mo. 252; R. S., sec. 2497; Fairfield. v. Pickering, 12 Pick. 398; Taafe v. Josephson, 7 Cal. 355; McKenty v. Guldevin, 10 Cal. 227; Scales v. Scott, 13 Cal. 76; Gardier v. Schloss, 18 Cal. 581; Wilcoxen v. Burton, 27 Cal. 228. (4) Finally this confessed judgment is fraudulent in fact as to these plaintiffs and other creditors. Foster & Co. and R. R. Foster were engaged in a scheme to cheat and defraud their creditors, and the confession of these judgments was a part of that scheme. And C. G. Foster, acting for himself and partner Ward, was cognizant of, and connected with, that scheme, by direct knowledge and through his brother R. R., whom he made his agent to attend to the whole matter. C. G. having made R. R. his agent, is chargeable with R. R.'s fraudulent intent and acts in the matter. Rogers v. Palmer, 102 U.S. 263; Bank v. Hoeber, 11 Mo.App. 475; s. c., 88 Mo. 37; Hopkins v. Lambert, 58 Mo. 501; Chandler v. Freeman, 50 Mo. 239; Burgert v. Borchert, 59 Mo. 80; Gas Co. v. Gree, 66 Mo. 512; McNichols v. Rubleman, 13 Mo.App. 522; Bump on Fraud. Con. 53.

Frank K. Ryan and Chester H. Krum for respondents.

(1) The confession of judgment in favor of C. G. Foster against R. R. Foster is perfectly good under the statutes of this state. (a) The judgment was not impaired in any way because the confession omitted to state the dates and amounts of all the interest payments on the two loans of three thousand dollars and two thousand dollars respectively. Frost v. Koon, 30 N.Y. 428; Clements v. Gerow, 1 Keyes, 297; Gandall v. Finn, 1 Keyes, 217; Neusbaum v. Keim, 24 N.Y. 325; Bryan v. Miller, 28 Mo. 34; Freligh v. Brink, 22 N.Y. 418. (b) The court below held that there was no insufficiency of the confession of judgment in the above respect; but if there had been, and too much interest had been charged, it would have been competent for the court to have corrected the judgment in that regard. And it is competent for this court to make such correction if it be necessary. Harrison v. Gibbons, 71 N.Y. 59; Adam v. Arnold, 86 Ill. 185; Davenport v. Wright, 51 Pa. Stat. 292; Kent v. Chalfant, 7 Minn. 487; Zuckerman v. Solomon, 73 Ill. 130. (2) It is immaterial what was the purpose of R. R. Foster with reference to his creditors generally. It is enough that the debt, for which he confessed judgment, was a bona-fide debt; and, such being the case, it is the established rule of this court that it is entirely competent for a creditor to except a preference, although the purpose of the debtor is thereby to postpone the claims and demands of other creditors, and, although the creditor who receives the preference knows that the effect of such preference will be to defer, or to hinder, or delay other creditors, and that the debtor intended that it should have that effect. Shelley v. Boothe, 73 Mo. 74. (3) The confession of judgment in favor of Ward & Foster is perfectly good upon the authority of the cases heretofore cited. It is certain to a common intent. No other or higher degree of certainty is required. If the confession does not in itself present a concise statement of the facts out of which the indebtedness arose, then the deficiency in this respect was remedied by the schedule which was filed with it and constituted a part of it. Hamann v. Keinhart, 11 Abbott, 132; Clements v. Gerow, 1 Keyes, 298; Harrison v. Gibbons, 71 N.Y. 61. (a) The point made by appellants with reference to interest is absolutely without merit. In the absence of testimony of an express agreement it will be presumed that interest was paid in pursuance of a valid agreement, although no such agreement was shown by the statement upon which the judgment was confessed. Freligh v. Brink, 22 N.Y. 418; Neusbaum v. Keim, 24 N.Y....

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