Weinstein v. Reid

• Decision Date: 08 March 1887
• Citation: 25 Mo.App. 41
• Parties: SAMUEL WEINSTEIN, Appellant, v. M. W. REID, Respondent.
• Court: Missouri Court of Appeals

25 Mo.App. 41

SAMUEL WEINSTEIN, Appellant, v. M. W. REID, Respondent.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

A BINSWANGER, for the appellant: In civil, as in criminal cases, fraud may be established by proof of a conspiracy between the defendant and others to defraud; and it is not necessary that proof of the conspiracy be first established before the admission of declarations of the conspirators provided such conspiracy be afterwards proved. Miller v Barber, 4 Cent. Law Jour. 177; Sweat v. Rogers, 6 Heisk. [Tenn.] 118; Page v. Parker, 40 N.H. 62; S. C., 43 N.H. 363; Field v. Liverman, 17 Mo. 218. Where a question of fraud is involved, much latitude is allowed, and the evidence necessarily must take a wide range and embrace all facts and circumstances which go to show the true character and extent of acts of the parties, and their objects and intentions. Smalley v. Hale, 37 Mo. 102; Field v. Liverman, 17 Mo. 224; Lane v. Kingsberry, 11 Mo. 410. A third person present at consultation between attorney and client may be compelled to disclose what he heard, and what was said to or by him. Communications or statements made in the presence of such third person are not privileged. Jackson v. French, 3 Wend. 337; Railroad v. Yates, 67 Ala. 164; Perkins v. Guy, 55 Miss. 153; Gallagher v, Williamson, 23 Cal. 331; Goddard v. Gardner, 28 Conn. 172; Hoy v. Mor ris, 13 Gray 519; Hatton v. Robinson, 14 Pick. 416; People v. Baker, 22 Cent. Law Jour. 451. If a debtor forms in his mind a purpose to do any of the things, the doing of which will warrant an attachment, and is about to carry out such purpose at the time an attachment is sued out, the attachment will be sustained. Myers v. Farrell, 47 Miss. 281; Stewart v. Cabanne, 16 Mo.App. 517; Eisenhardt v. Cabanne, 16 Mo.App. 531.

J. A. TALTY, for the respondent.

OPINION

THOMPSON J.

The plaintiff brought an attachment suit against the defendant to collect a merchant's account for $176.75. The grounds of his attachment were: " That the defendant has fraudulently conveyed or assigned his property or effects, so as to hinder or delay his creditors; that the defendant has fraudulently concealed, removed, or disposed of his property or effects, so as to hinder or delay his creditors; that the defendant is about fraudulently to convey or assign his property or effects, so as to hinder or delay his creditors; that the defendant is about fraudulently to conceal, remove, or dispose of his property or effects, so as to hinder or delay his creditors; that the debt sued for was fraudulently contracted on the part of the debtor; that the defendant is about to remove his property or effects out of this state, with the intent to defraud, hinder, or delay his creditors; that the defendant is about to remove out of this state with the intent to change his domicile." An affidavit making these charges was sworn to by the plaintiff. The defendant filed a plea of abatement. The issue thus made was tried before a jury, and the trial resulted in a verdict for the defendant, and a judgment that the attachment abate. From this judgment the plaintiff prosecutes this appeal under the statute.

There was no evidence at the trial tending to support any of the allegations of the affidavit, except the following: " That the defendant has fraudulently removed or disposed of his property or effects, so as to hinder or delay his creditors; that the defendant is about fraudulently to conceal, remove, or dispose of his property or effects, so as to hinder or delay his creditors." But upon these two points there was evidence tending to support the attachment, and some of it was of a cogent nature.

The defendant conducted a clothing, furnishing goods, and boot and shoe business on Franklin avenue, in St. La. In the month of December, 1885, he was indebted to various creditors in a sum exceeding sixteen thousand dollars. His assets, at their appraised value, amounted to less than half this sum. His creditors began to press him with bills incurred in the purchase of goods, which he was unable to meet. On the thirteenth of December, a fire had broken out in his store, and his goods had been damaged to some extent by fire and water, for which he had collected about three hundred dollars of insurance money. The plaintiff's evidence tended to show that, for a few days prior to the levy of the attachment, the defendant was urging his clerks to sell goods at a sacrifice, although the defendant's own testimony explained this by showing that it was only the damaged goods that he was trying to work off at less than their cost value. For several days prior to the attachment, he deposited no money in the bank, although on one day his sales had amounted to about three hundred and fifty dollars. He claims to have paid out all the money which he took in during these days, except about nineteen dollars (which was on hand when he made the assignment for the benefit of his creditors, which will be hereafter spoken of) in the payment of various small debts, and in the settlement of bills incurred on his family account, and he admits giving money to his wife and daughter. The pages in his salesbook, which should have contained the entries of sales made during the five days preceding the attachment, were torn out, and the book, thus mutilated, came into the assignee's hands. Of course, no one was able to swear by whom, or for what purpose, these pages were torn out, and the defendant could give no account of it. The defendant had had, for some two years or more, in his employ a salesman by the name of Bart. J. Brennan. The evidence tended to show that, at the time of the fact of which we are about to speak, he was in arrears to Brennan, on account of the salary of the latter, in a sum not less than two hundred and ten dollars, and not more than two hundred and sixty-three dollars, but that he had on deposit in the bank more than two hundred and forty dollars; that Brennan, seeing that creditors and lawyers were calling, and becoming alarmed about the payment of the arrears of wages thus due him, requested payment of the defendant, who tried to put him off with the excuse that he was unable to pay him then, and that the trouble would blow over in a few days. But what was finally done was this: The defendant gave his promissory note to Brennan--not for the sum due Brennan, but for the sum of six hundred dollars, which was more than double the amount due Brennan upon any theory. At the same time the defendant and Brennan figured up what was due the latter, and, as they state in their testimony, found the amount to be two hundred and eighty-six dollars. This, we understand, was on the twenty-first day of December, 1885, the day preceding the levy of this attachment, and the making of the assignment, hereafter spoken of, by the defendant for the benefit of his creditors. In order to figure out this amount as being due Brennan, the defendant allowed him at the rate of eighteen dollars per week after the first of October, 1885, in accordance with a prior understanding, that he would raise his wages at that date from twelve dollars per week to eighteen dollars per week, if business should be good. He, nevertheless, claims to have raised Brennan's wages, although business was not good. In order to figure out this amount, he also allowed Brennan wages at the rate of eighteen dollars a week down to the end of the month of December, 1885, thus including nine or ten days in advance of any service rendered by Brennan, and this, although Brennan testified that he was working by the week, and not by the month. The only excuse which the defendant and Brennan, testifying as witnesses, were able to make, for the giving and receiving of this note of six hundred dollars, was, that the defendant was about to make an assignment for the benefit of his creditors under the statute, and he desired that Brennan should collect his wages in full, and so he gave him a note for a sum so large that, if Brennan were to prove it up before the assignee for the full amount, the dividend which he would receive would probably amount to what was actually due him.

I. This transaction concerning the note brings us to certain rulings of the court upon the admissibility of evidence. The plaintiff endeavored to show that Brennan took this note and, having engaged his uncle to go on an attachment bond for him, went to two different lawyers, one of whom represented the plaintiff in this action, for the purpose of seeing about making it the foundation of a suit by attachment against the defendant. The court in the first instance ruled out this testimony, and also the declarations of Brennan made to these lawyers, on the ground that a conspiracy between Brennan and the defendant had not been proved. In this there was no error. In order to make the acts or declarations of a conspirator, made in furtherance of the common design, evidence against his co-conspirator, it must, regularly, first be made to appear that a conspiracy existed, and that the acts and declarations were made in furtherance of the conspiracy which was formed, and while it was in fieri. While there is authority to the effect that the trial court may, in the exercise of a sound discretion, allow evidence of the acts and declarations of a supposed conspirator to go to the jury, before evidence prima facie showing the fact of the conspiracy has been given, subject to be withdrawn from the jury by an instruction, in case such foundation is not afterwards laid (Sweat v. Rogers, 6 Heisk. 118; Miller v. Barber, 4 Cent. Law Jour. 177), yet no authority is cited to us, and none is believed to exist, which holds that it is, under any...