Clark v. Cox

Decision Date16 December 1893
Citation24 S.W. 221,118 Mo. 652
PartiesCLARK v. COX et al.
CourtMissouri Supreme Court

Appeal from circuit court, Clinton county; James M. Sandusky, Judge.

Replevin by Frank Clark against Gabe Cox and others to recover goods levied on by defendant Cox as sheriff under attachments sued out by his codefendants. From a judgment for plaintiff, defendants appeal. Affirmed.

The other facts fully appear in the following statement by BURGESS, J.:

This is an action of replevin for a stock of goods. One John D. Swike, being indebted to Isaac Lesem & Co. in the sum of $4,184.90 on the account of the purchase of goods from them, executed a deed of trust upon a stock of dry goods and groceries of which he was the owner to secure said indebtedness. The goods were afterwards publicly sold in pursuance of the terms of the deed of trust, and were purchased by the plaintiff, who was a miller, and lived at a different place from where the goods were. After the sale Swike remained around the store, and sometimes assisted in selling goods; but one Joseph Hess was in the control of and conducted the business just as it had been done before the sale by the trustee, except that thereafter the business was conducted and books kept in the name of the plaintiff, Clark. There was no visible change of possession further than as here stated. The defendant Cox was, at the time the goods were replevied, sheriff of Daviess county, and by virtue of several writs of attachments in his hands against Swike, sued out by his co-defendants, (who were made parties defendant on their own motion,) had seized, attached, and taken into his possession the stock of goods in question, from whom they were subsequently replevied by plaintiff. There is no question as to the bona fides of the indebtedness of Swike to Lesem & Co. The defense was that the purchase of the goods by plaintiff was by fraudulent collusion between him and Swike to hinder and delay the latter's creditors in the collection of their debts, and that the goods were in fact Swike's, and were bought and held by plaintiff for him, although purchased in his own name. There was a vast amount of testimony tending to sustain either theory of the case. The jury found for plaintiff, and defendants appealed.

Hicklin & Yates and Alexander & Richardson, for appellants. J. F. Harwood, T. J. Porter, and Crosby Johnson, for respondent.

BURGESS, J., (after stating the facts.)

The first error in the order of trial assigned by appellants is as to the competency of the statements made by Swike to various witnesses, both before and after the sale of the goods under the deed of trust and the purchase by plaintiff, his act in taking money from the drawer in the store, and also the statements made by some of the employes after the purchase by Clark. It is virtually conceded by counsel for defendants that unless there was a conspiracy shown to exist between plaintiff and Swike to defraud the creditors of the latter, and to cover up the goods so that they could not be reached by Swike's creditors, such evidence was properly excluded. If the transaction had been a direct sale of the goods from Swike to plaintiff for the purpose of defrauding the creditors of Swike, then his statements made before the pretended sale would have been admissible as against him as tending to show the purpose with which the sale was made. Holmes v. Braidwood, 82 Mo. 610. But this is not that kind of case. It is not, therefore, a case in which a sale from a debtor is attacked for fraud. The case is one in which a sale under a deed of trust is made, and the purchase at that sale is charged as being for and in the interest of Swike, and to...

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8 cases
  • Kleinlein v. Foskin
    • United States
    • Missouri Supreme Court
    • February 1, 1929
    ...or prejudiced, or that the jury could have been misled or confused. [38 Cyc. 1614; Randall on Instructions to Juries, sec. 122: Clark v. Cox, 118 Mo. 652, 657: McGrew v. Railway Co., 109 Mo. 582, 589; Hemphill v. Kansas City, 100 Mo. App. 563, 567.] This court has ruled, in Burdoin v. Town ......
  • Haines v. Chicago, R. I. & P. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • March 6, 1916
    ...error — citing Johnson v. Mason, 178 Mo. App. 109, 163 S. W. 260; Torreyson v. Turnbaugh, 105 Mo. App. 439, 79 S. W. 1002; Clark v. Cox, 118 Mo. 652, 24 S. W. 221; Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236; Council v. Railroad, 123 Mo. App. 432, 100 S. W. 57; State v. Shermer, 55 ......
  • Haines v. The Chicago, Rock Island & Pacific Railway
    • United States
    • Kansas Court of Appeals
    • March 6, 1916
    ... ... such evidence [193 Mo.App. 460] was the most obvious hearsay ... and that its admission over the objection of defendant was ... reversible error. [Citing Johnson v. Mason, 178 ... Mo.App. 109, 163 S.W. 260; Torreyson v. Turnbaugh, ... 105 Mo.App. 439, 79 S.W. 1002; Clark v. Cox, 118 Mo ... 652, 24 S.W. 221; Whimster v. Holmes, 177 Mo.App ... 130, 164 S.W. 236; Council v. Railroad, 123 Mo.App ... 432; State v. Shermer, 55 Mo. 83; Gibony v ... Foster, 230 Mo. 106, 130 S.W. 314.] ...          In ... State v. Shermer, it is held that in a prosecution ... ...
  • Johnson v. Mason
    • United States
    • Missouri Court of Appeals
    • February 10, 1914
    ...his statements were admissible for that purpose. Holmes v. Braidwood, 82 Mo. 614; Holmes Organ Co. v. Petit Co., 34 Mo.App. 547; Clark v. Cox, 118 Mo. 656; Deslunger Harrington, 28 Mo.App. 636. (4) Knowledge of facts from which a prudent man would have known of the intent of the vendor has ......
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