Walkeen Lewis Millinery Company v. Johnston
| Decision Date | 26 May 1908 |
| Citation | 111 S.W. 639,131 Mo.App. 693 |
| Parties | WALKEEN LEWIS MILLINERY COMPANY, Respondent, v. JOHNSTON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Barry Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED.
Mayhew & Sater and Col. Cloud for appellant.
(1) Instruction number 5 is clearly erroneous. This instruction tells the jury that if Sig Solomon was the agent of defendant, then any admissions or statements made by Solomon concerning the disposition of said property and the intentions of defendant become the admissions and statements of defendant. The record shows that Solomon was the agent of defendant to sell certain real estate, not to publish defendant's intentions of leaving the State. Lumber Co. v. Kreeger, 52 Mo.App. 422; Helm v Railroad, 98 Mo.App. 425; Mechem on Agency, sec. 714. (2) The declaration of an agent to be admissible against the principal must be part of the res gestae. McDermott v Railroad, 73 Mo. 518; King v. Insurance Co., 101 Mo.App. 172. Declarations of a real estate broker as to his principal intending to leave the State do not bind the principal. Mechem on Agency, sec. 866; Brauckman v Leighton, 60 Mo.App. 38. (3) There was no evidence upon which to base instruction number 5. The court sustained objections made by defendant to testimony of witness Peel as to declarations made by Solomon that defendant was going to leave the State. Culberson v. Railroad, 50 Mo.App 657; Marr v. Bunker, 92 Mo.App. 657. (4) Instruction number 8 is erroneous. There can be no fraudulent disposition of the homestead within the meaning of the attachment law. Davis v. Land, 88 Mo. 436; Bank v. Guthrey, 127 Mo. 189; Osborne v. Evans, 185 Mo. 509; Stam v. Smith, 183 Mo. 469.
Peel & Sizer and David H. Kemp for respondent.
The conversation made by the appellant's agent as to her intending to leave the State was by the court excluded instruction number 5, complained of by the appellant is the law, as is evidenced by the language of the court in the case of the State to use v. O'Neil, 151 Mo. 89.
This is an attachment suit. The defendant owned and maintained a millinery establishment in the town of Monett. She became involved to the extent of a few hundred dollars for goods purchased on account of her stock in trade. The accounts were overdue and she was being pressed for settlement when she conveyed a piece of real estate owned by her in that town, to one Wilson under such circumstances as to excite suspicion. An attachment proceeding was filed and the property levied upon while the deed was being held in escrow by the First National Bank, and the title to the property undergoing examination. The bank was also summoned as garnishee, as will appear by reference to the case of Walkeen Millinery Co. v. Johnson First Nat. Bank, 130 Mo.App. 325; 109 S.W. 847.
The grounds alleged for the attachment are five in number, as follows: That the defendant is about to remove her property or effects out of this State with intent to defraud, hinder or delay her creditors. That the defendant is about to remove out of this State, with the intent to change her domicile. That the defendant has fraudulently conveyed or assigned her property or effects so as to hinder or delay her creditors. That the defendant is about fraudulently to conceal, remove or dispose of her property or effects so as to hinder or delay her creditors.
A plea in abatement was filed, whereby each of the several grounds of attachment mentioned was traversed. In support of the attachment, the evidence tended to prove that defendant, through her agent, Sig. Solomon, sold the real estate mentioned, in the city of Monett, and executed a warranty deed therefore to one Wilson, which was deposited in the bank until abstracts of title could be examined. The transaction consumed a couple of days. Mr. Wilson, the purchaser, deposited a check for about $ 1,600 with the same bank, as the purchase price of the property. Instructions were given to deliver the draft to defendant's agent, Solomon, upon completion of the abstract showing satisfactory title. A couple of days thereafter, when the abstract had been completed and the title pronounced satisfactory, the bank delivered to defendant's agent, Solomon, the check of its assistant cashier for the amount of the purchase price. Defendant's agent acting under her instructions, immediately assigned this check to her minor daughter, Eddy Johnston, and deposited the same in the First National Bank to the account of such minor daughter, and delivered the certificate of deposit to defendant. On the same or following day, the daughter, Eddy, signed her name to a check for $ 600 which was delivered to the agent, Solomon, for the purpose of making a loan on real estate. Solomon negotiated the loan, taking a note and deed of trust securing the same in his own name, assigned the note in blank, and delivered it to the defendant. The attachment suit having been filed in the meantime, the writ was served upon defendant immediately following these transactions, probably the following day. It also appeared in evidence that defendant, during the month of January previous, had executed a deed of trust on the same piece of property in favor of her daughter, Laura Johnston, purporting to secure to her the sum of $ 1,700. This deed was duly recorded. Afterwards, upon the consummation of the sale of the property to Mr. Wilson, the deed was released on the margin of the record. There was also evidence that although defendant had given many promises to pay the indebtedness, she finally rejected an offer to settle at fifty cents on the dollar. There was slight evidence tending to prove the defendant had expressed an intention to remove out of the State. Her sister-in-law, Mrs. Billett, testified that shortly prior to the transactions mentioned, the defendant expressed a purpose to go to Parsons, Kansas, and accept employment. She said she could not say as to whether the defendant's purpose was to remain there temporarily or permanently. Although an objection was sustained thereto at one point in the first portion of his examination, it appears thereafter a witness, Mr. Peel, was permitted to testify that defendant's agent told him on the street, just after the sale of the property, that defendant intended to pay her debts and remove to Kansas. The jury returned a verdict sustaining the attachment on all the grounds alleged in the affidavit. The court having given judgment thereon, defendant appeals.
It is insisted, the evidence is insufficient to support the verdict. A perusal of the facts stated, discloses that this argument is entirely without merit unless it be with respect to the two grounds alleged relating to the intention of the defendant to remove out of the State. After excluding the evidence of the witness Peel as to what defendant's agent, Solomon, said to him about defendant's intention to remove from the State, which was hearsay and incompetent there is indeed slight evidence in support of the two grounds of attachment predicated on this idea. When considered in connection with the other facts and circumstances in the case, the testimony of Mrs. Billett, to the effect that defendant had expressed a purpose to go to Kansas to accept a position, and that witness would not say whether the defendant intended to make her residence there temporary or permanent, ...
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