26 Mo.App. 411 (Mo.App. 1887), Kendall v. Baltis

Citation:26 Mo.App. 411
Opinion Judge:HALL, J.
Party Name:W. W. KENDALL ET AL., Appellants, v. BALTIS & BALTIS, Defendants; MATHIAS BALTIS, INTERPLEADER, Respondent.
Attorney:JOHN D. BOYD and L. H. WATERS, for the appellants. R. R. KITT, E. J. BROADDUS, and J. E. WAIT, for the respondent.
Case Date:May 23, 1887
Court:Court of Appeals of Missouri
 
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Page 411

26 Mo.App. 411 (Mo.App. 1887)

W. W. KENDALL ET AL., Appellants,

v.

BALTIS & BALTIS, Defendants; MATHIAS BALTIS, INTERPLEADER, Respondent.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL fro Livingston Circuit Court, HON. C. H. MANSUR, Special Judge.

Affirmed.

The case is sufficiently stated in the opinion of the court.

JOHN D. BOYD and L. H. WATERS, for the appellants.

I. The sole consideration of the sale of the goods in controversy, by Baltis Brothers to their father, was, that " he should assume and pay " certain notes of theirs, on which the father was security. He was not, in contemplation of law, their creditor. No right of action enures to a surety, against his principal, until the security debt is paid. Hearne et al. v. Keath et al., 63 Mo. 84; Berthold's Adm'r v. Berthold, 46 Mo. 557; Anslie v. Wilson, 7 Cowen 662; Kritzer v. Smith, 21 Mo. 296.

II. The evidence is clear that the sale was made to provide for the home creditors of the firm, and to keep the foreign creditors off, and that the purchaser was fully advised as to the financial condition of the firm, and as to the purpose for which the sale was made, and, therefore, he was not a bona fide purchaser. Durkee v. Chambers, 57 Mo. 575; Burgert v. Borchert, 59 Mo. 80; Bobb v. Woodward, 50 Mo. 95; Arnholt v. Hartwig, 73 Mo. 485.

III. If Mathias Baltis knew that the sale to him was made to delay or hinder any of the creditors of Baltis Brothers, the transfer was fraudulent, as to the creditors of Baltis Brothers, without regard to the intention of the purchaser. Craig v. Zimmerman, 87 Mo. 475.

IV. The court erred in giving, on behalf of the interpleader, instructions numbered one, two, three, four, and five. Hearne et al. v. Keath et al., supra; Kritzer v. Smith, supra; Durkee v. Chambers, supra; Bobb v. Woodward, supra; Craig v. Zimmerman, supra.

V. The court erred in refusing to give, on behalf of plaintiffs, Kendall & Company, instructions numbered one to eleven, both inclusive.

VI. The court erred in giving, on its own motion, instructions numbered one, two, three, four, and five. They do not state the law of the case.

R. R. KITT, E. J. BROADDUS, and J. E. WAIT, for the respondent.

I. The interpleader was a creditor of Baltis Brothers, for the purposes of this suit. Duvall v. Raisin, 7 Mo. 449...

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