Estes v. Fry

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 80
• Parties: FIELDEN ESTES, Appellant, v. JACOB FRY, Respondent.
• Court: Missouri Court of Appeals

22 Mo.App. 80

FIELDEN ESTES, Appellant,

v.JACOB FRY, Respondent.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge.

Reversed and remanded.

W. H. MORROW, for the appellant: Evidence of an attempted compromise is improper. Smith v. Shell, 82 Mo. 215. Instructions containing abstract principles mislead rather than enlighten the jury. Chouteau v.Iron Works, 83 Mo. 73. An instruction which declares unconditionally the right of the defendant to sell or dispose of any of his property, thus completely ignoring evidence introduced as to the fact of the mortgaged condition of much of his property to the plaintiff, and thereby assuming the truth of a controverted fact, is erroneous. Farrar v. David, 33 Mo. 482; Wilkerson v. Thompson, 82 Mo. 317; Comer v. Taylor, 82 Mo. 341. The phrase “legitimate purpose” means lawful, accordant with law, and, therefore, submits a question of law to the jury for their determination. Hudson v. Railroad, 53 Mo. 525; Morgan v. Durfee, 69 Mo. 469.

D. A. BALL, M. G. REYNOLDS, and W. H. BIGGS, for the respondent: A debtor may prefer one of his creditors. Longermore v. Bushy, 56 Mo. 540; Dougherty v. Cooper, 77 Mo. 528.

THOMPSON, J., delivered the opinion of the court.

This appeal is prosecuted by the plaintiff from a judgment in favor of the defendant upon a trial by a jury of the issues made by a plea in abatement to an attachment. The grounds of attachment, which the plea in abatement put in issue, were as follows:

“1. That defendant is about fraudulently to convey or assign his property or effects so as to hinder or delay his creditors.

2. That defendant has fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors.

3. That defendant has fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors.

4. That defendant is about fraudulently to conceal, remove, or dispose of his property or effects so as to hinder or delay his creditors.”

The evidence at the trial showed that the defendant was a farmer in Pike county, and was heavily indebted, not only to the plaintiff, but to others, and had been so indebted for twelve years or more, and that there were various judgments standing against him; that in May, 1881, he had a few cattle, a few hogs, two mules and a wagon, one reaper, one drill, several plows and harness; also, one horse, which a short time before he had sold to his son. It also appeared that a married son of the defendant, W. H. Fry, lived at home with him and assisted him in carrying on his farm; that the plaintiff held a deed of trust upon the defendant's farm and also a chattel mortgage, the latter, given in 1876, conveying the entire crop to be grown upon the farm, together with the future crops to be thereon grown, except what should be necessary each and every year for the support and maintenance of the defendant and his family, and the keeping up of the farm, the crops to be grown, cultivated and sold by the defendant and the proceeds thereof, including all surplus stock of every description, to be faithfully applied to the payment of the indebtedness thereby secured.

We may here dispose of a point made in connection with this remarkable mortgage, a counterpart of which had been given by the defendant's son, W. H. Fry, by which the two seemed to have virtually surrendered themselves and the gains of their future industry for an indefinite period of time in a sort of serfdom to the plaintiff. It is claimed that, whereas portions of the property which the defendant is charged, in the affidavit for the attachment, with having fraudulently disposed of or with being about fraudulently to dispose of, was at the time covered by this mortgage, it was incompetent for the defendant to vary its terms by oral testimony, showing a pre-existing agreement of a different character, relative to the same subject, between the plaintiff and himself; and that it was erroneous, in view of the existence of this mortgage, for the court to instruct the jury that the defendant had a right to sell and dispose of any property belonging to him. We think it sufficient answer to these objections to say that we do not see in the record any evidence that the four hogs, and the mules and wagon, the selling of which constitutes the fraudulent disposition of property by the defendant, of which the plaintiff complains, were “surplus stock” grown upon the farm. On the contrary, it appears from the testimony of the defendant, when called as a witness for the plaintiff, that he had bought the mules of the plaintiff, and we do not see that they were covered by the mortgage, though that was probable. But if it was a fact and material it was susceptible of proof. Besides, we do not see that any evidence given by the defendant, which may be supposed to vary the terms of the chattel mortgage, was objected to on that ground.

It, also, appeared that the day after the levy of the attachment the defendant had confessed judgments in favor of certain other creditors; that a few days prior to the levy of the attachment, the defendant, through his son, W. H. Fry, sold the two mules and wagon to one Frier for two hundred and fifty dollars, which was a fair price, the defendant receiving the money; that a short time before the levy of the attachment, the defendant also sold, through his son, W. H. Fry, four small hogs to one Boyd, for fifteen dollars, which was also a fair price; that the son, W. H. Fry, also sold a mare belonging to him, W. H. Fry, which had been mortgaged by him to the plaintiff; that the plaintiff had W. H. Fry arrested for selling this mortgaged mare, and that, in order to procure his release from the arrest, the defendant paid to the plaintiff the two hundred and fifty dollars which he had received from Mr. Frier for the sale of the mules and wagon. Mr. Boyd testified for the plaintiff to the effect that at the trial of Estes v. Wiginston--when that was, does not appear, but it seems to have been understood as nearly contemporaneous with the transactions in controversy--W. H. Fry had said that the notes had been calculated in court--meaning, we suppose, the notes of his father--and that the amount appeared to be nearly $10,000, which was more than the land and everything was worth. He wanted to sell the witness a wagon, and said that he was going to sell out what little things he had and skip out. Mr. Frier also testified that when he bought the mules and wagon of W. H. Fry, the latter either said that the mules were his, and that he wanted to sell them and go to Colorado, or that they belonged to his father and that his father wanted to sell them and go away. As W. H. Fry appears to have always lived with his father, and appears to have acted for his father in selling the mules and wagon and the hogs, these declarations of his seem to have been material, and the court seems to have correctly instructed the jury to take them into consideration. This was the substantial evidence adduced by the plaintiff to sustain the issue on his part.

On the other hand, the evidence of the defendant tended to show that he owed other creditors whom he desired to pay, and that he had made the sales of the property which he made, in good faith, for the purpose of paying other creditors, and also for the purpose of getting money to buy necessaries which his family were compelled to have to live on.

The court permitted the plaintiff to put in evidence depositions as to his general character. As the defendant does not complain of this, of course it is not a subject for revision here. But in connection with what we shall say hereafter, it indicates that the case was tried as much on the issue of the plaintiff's character as on the issue of the defendant's conduct. Such evidence was totally irrelevant.

Of the same character was evidence given by the defendant, against the objection of the plaintiff, to the effect that the plaintiff, at the time the attachment was levied, had the defendant's farm advertised for sale under the deed of trust, and that it was a short time afterwards sold by him. This evidence had no pertinency whatever to the issues on trial, and seems to have been put in for the purpose of exciting prejudice in the minds of the jury against the plaintiff, and it no doubt had this effect. As we have said in a case of this character ( The State to use v. Excelsior Distilling Company, 20 Mo. App. 21), the evidence on such an issue as this must necessarily take a wide range. If the plaintiff had seen fit to introduce this evidence, as tending to show a motive on the part of the defendant to sell and dispose of his personal property, with a view of keeping it from the plaintiff, or of carrying the proceeds of it out of the country, we should not be prepared to say that he would not have a right to do so. But he had the right to have it kept out, if of opinion that it would prejudice...