State v. Daggs

• Decision Date: 12 October 1891
• Citation: 17 S.W. 306,106 Mo. 160
• Parties: The State, Appellant, v. Daggs et al
• Court: Missouri Supreme Court

17 S.W. 306

106 Mo. 160

The State, Appellant, v. Daggs et al

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Scotland Circuit Court. -- Hon. Ben. E. Turner, Judge.

Affirmed.

John M Wood, Attorney General, for the State.

There is a direct charge that the goods were to be paid for on delivery, and that the defendants had agreed to give, and the corporation had agreed to receive, notes, secured by mortgage on the machine as payment. This makes it an agreement to pay for the machine upon the delivery thereof, and is as much so as if the payment agreed upon was to have been made in money. Where there is an agreement to that effect, a promissory note received for a debt is payment of that debt. 33 Mo. 583; 80 Mo. 47; 20 Mo.App. 82; 21 Mo.App. 512; Appleton v Kennon, 19 Mo. 637; Black v. Dorman, 51 Mo. 31; Rigg v. Goodrich, 74 Mo. 108; Leabo v. Goode, 67 Mo 126; R. S. 1889, sec. 3564.

OPINION

Macfarlane, J.

Defendants were indicted for an alleged violation of section 1335, Revised Statutes, 1879. A demurrer to the indictment was sustained, and the state appealed.

The indictment stated in substance that defendant, with intent to cheat and defraud, purchased of C. Aultman & Co. certain specified farm machinery for the price of $ 1,850, to be paid for on delivery, at Memphis in Scotland county, "with three notes of amounts and due as follows, to-wit, note for $ 650, due January 1, 1890; note for $ 650, due January 1, 1891; and note for $ 550, due January 1, 1892, and further agreed to give, in security of the foregoing notes, a first mortgage on said machinery," and with intent to cheat and defraud the said C. Aultman & Co., after obtaining possession of said machinery "under said contract and agreement aforesaid, unlawfully and feloniously did sell, dispose of and transfer" the same, "before paying or satisfying the said C. Aultman & Co., the owner, or his agent, clerk or servant therefor."

Such part of said section 1335, as is applicable to the offense with which the indictment undertook to charge defendants is as follows: "Every person who shall, with intent to cheat or defraud another, * * * agree or contract with such other person or his agent, clerk or servant for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any...