Desberger v. Harrington

• Decision Date: 17 January 1888
• Citation: 28 Mo.App. 632
• Parties: SAMUEL DESBERGER, Appellant, v. HENRY F. HARRINGTON, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 632

SAMUEL DESBERGER, Appellant, v. HENRY F. HARRINGTON, Respondent.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Affirmed.

A BINSWANGER, for the appellant: There was no testimony on the part of defendant tending to invalidate the sale in any particular. One who in good faith takes personal property for an antecedent debt will be treated as a purchaser for value and will be protected against a claim of the original owner (and against creditors of the vendor) to the same extent as if he had purchased it for value. Hess v. Clark, 11 Mo.App. 492; Green v. Kennedy, 6 Mo.App. 577. When the sale is in payment of an antecedent debt, if there be no secret trust, or benefit, or reservation, to the grantor, an actual sale made by such debtor, at a fair and reasonable price, will be upheld, although it be known to both contracting parties that such sale will leave the debtor unable to pay his other debts. Johnson v. Thweatt, 18 Ala. 741; King v. Kenan, 38 Ala. 63; Holbird v. Anderson, 5 T. R. 23; Croanhaven v. Hart, 21 Pa.St. 495; Pearson v. Rockhill, 4 B. Mon. 296; Bank v. Huth, 4 B. Mon. 423; McMenomy v. Murray, 3 Johns. Ch. 435; Coffin Co. v. Rubelman, 15 Mo.App. 280; State to use v. Distilling Co., 20 Mo.App. 21.

E. T. FARISH, for the respondent: The conveyance by Abrahams to Desberger of his stock in trade was for an amount much below its actual value, and he, Abrahams, was rendered thereby insolvent. This fact, with the other circumstances in the case, not only cast suspicion upon the transaction, but tended strongly to show that the transfer was made by Abrahams with the intent to hinder, delay, or defraud his other creditors, and that Desberger knew of such fraudulent intent, and participated in such fraud. Ames v. Gilmore, 59 Mo. 543; McNichols v. Rubleman, 13 Mo.App. 520; Distilling Co. v. Vosmeyer, 25 Mo.App. 578; Burgert v. Borchert, 59 Mo. 84. The law in respect to transactions such as this is, " that if it appeared from the facts and attendant circumstances of the transaction that the preferred creditors in some way participated in the fraud, or that there was a purpose, beyond the mere effort to collect his own debt, to aid the debtor in defeating, delaying, etc., his other creditors, or to protect the debtor as well as himself, the transaction is fraudulent." Holmes v. Braidwood, 82 Mo. 615; Shelley v. Boothe, 73 Mo. 74. As is said in Hopkins v. Siebert (58 Mo. 201): " Fraud is seldom susceptible of direct proof, but may be established by a number and variety of circumstances, which, though apparently trivial and unimportant when considered separately, may, when combined together, afford irrefragable proof of fraud."

OPINION

ROMBAUER J.

On September 9, 1886, Joseph M. Hayes, a merchant, sold to M. Abrahams, a merchant tailor of this city, piece goods of the value of $964.14. On October 11, 1886, Abrahams sold to the plaintiff, who is his brother-in-law and former partner, the entire contents of his store, including store-goods and fixtures, inventoried at $12,288.56, for a recited consideration of $10,752.49, being twelve and a half per cent. less than the inventoried value, and at once delivered to him possession. The consideration of the sale, according to plaintiff's statement, consisted of an indebtedness from Abrahams to plaintiff, the bulk whereof originated in January, 1884. Hayes, hearing of this sale, sued out a writ of attachment, and caused the same to be levied bye the defendant sheriff on so much of the goods sold by him to Abrahams as could still be found, being of the value of six hundred and fifty dollars. The plaintiff thereupon brought this action of replevin for the recovery of the goods so taken, against the defendant sheriff.

The petition contains the usual averments. The answer is a general denial, and sets up fraud in the sale from Abrahams to plaintiff. The case was tried by a jury, who brought in a verdict for the defendant.

The first error complained of is, that there was no evidence whatever attacking the good faith of the sale, and that the court erred in refusing to instruct the jury, at the close of the entire case, to find a verdict for the plaintiff.

Passing the question whether such an instruction is ever warranted in a case where the burden of proof, on any branch of the case, is with the plaintiff, we turn to the evidence.

There was evidence tending to show that Abrahams had formerly been connected in business with the plaintiff, and that their business and family relations were of an intimate character that goods of a value exceeding seven thousand dollars were bought by Abrahams on credit a few months preceding the alleged sale, and that the plaintiff, who was a trader in the same line, had every reason to know that the goods were so bought, and had not been paid for; that the plaintiff assisted in the making of the inventory, and had reason to suppose that the goods bought from Hayes had not been paid for; that Abrahams, at the date of the sale and for some time anterior thereto, was hopelessly insolvent, although he was not at said date pressed for payment either by the plaintiff or other of his creditors; that the plaintiff purposely refrained from making any direct inquiries as to the financial standing of Abrahams, or as to whether the goods which were to be transferred to himself were paid for or...