25 Mo.App. 41 (Mo.App. 1887), Weinstein v. Reid

Citation:25 Mo.App. 41
Opinion Judge:THOMPSON, J.
Party Name:SAMUEL WEINSTEIN, Appellant, v. M. W. REID, Respondent.
Attorney:A. BINSWANGER, for the appellant: J. A. TALTY, for the respondent.
Case Date:March 08, 1887
Court:Court of Appeals of Missouri
 
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Page 41

25 Mo.App. 41 (Mo.App. 1887)

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...

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