Ettlinger v. Kahn

• Citation: 36 S.W. 37,134 Mo. 492
• Parties: Ettlinger et al. v. Kahn; Lehnhard, Interpleader, Appellant
• Decision Date: 02 June 1896
• Court: United States State Supreme Court of Missouri

36 S.W. 37

134 Mo. 492

Ettlinger et al. v. Kahn; Lehnhard, Interpleader, Appellant

Supreme Court of Missouri, Second Division

June 2, 1896

Appeal from Barry Circuit Court. -- Hon. J. C. Lamson, Judge.

Reversed and remanded.

Cloud & Davies and Pepper & Steele for appellant.

The appellant's demurrer to the evidence should have been sustained. If there is no evidence to support an issue, it is the duty of the court to instruct the jury. Alexander v Harrison, 38 Mo. 258; McFarland v. Bellows, 49 Mo. 311. And it is as much the duty and province of the trial court to direct the jury to find a verdict for the defendant where the undisputed facts show no legal liability to have been incurred, as it is the province of the jury where there is conflicting evidence, to establish the demand of the plaintiffs and the defense of the defendant, to return a verdict for either party. This is well settled law, both in this state and elsewhere. Powell v. Railroad, 76 Mo 83, and cases cited. And the rule is well settled in this state that a mere scintilla of evidence will not answer as a basis on which to rest a verdict. O'Hare v. Railroad, 95 Mo. 682. Under the rulings above cited there was no evidence in this case to warrant its submission to the jury. The pleading and undisputed evidence proved the execution and delivery of the deed of trust and the stock of goods in controversy to the trustee. This entitled him to hold and retain possession thereof and dispose of same for the purposes of the trust, unless the deed of trust is void as to plaintiff and other attaching creditors on account of fraud. There is absolutely no evidence of fraud and no circumstances in evidence from which fraud might reasonably be inferred, unless the court should hold that the one circumstance of the relationship of some of the beneficiaries named in the deed of trust, to be such circumstance; and it has been otherwise decided by the St. Louis court of appeals in Simon Gregory Dry Goods Co. v. McMahan, 61 Mo.App. 499. The court erred in refusing appellant's instruction. It is supported by a long line of decisions in this state. Further error was committed by the court in admitting the evidence of T. S. Frost, the clerk of the court. Albert v. Besel, 88 Mo. 150.

L. Beasley and J. S. Davis for respondents.

(1) The court did not err in overruling the demurrer to the evidence. When there is any evidence, either direct or circumstantial, tending to prove the fact in question, the cause should be submitted to the jury. In this case the question was whether or not the deed of trust was fraudulently made, and whether or not the beneficiaries therein named as preferred creditors knew of and participated in the fraud. Chambers v. McGiveron, 33 Mo. 202; McKown v. Craig, 39 Mo. 156; Deere v. Pilant, 42 Mo. 60; Wood v. Ins. Co., 50 Mo. 112; Grady v. Ins. Co., 60 Mo. 116; Twohey v. Fuin, 96 Mo. 104; Charles v. Patch, 87 Mo. 163. (2) Fraud can not easily be proven by direct evidence. "Fraudulent transactions are not committed openly and in the light of day, but generally with secrecy and with a view of concealing the evidence of it. Fraud must therefore generally be inferred from all the facts and circumstances which characterize the transaction. Where an inference of fraud may be drawn from all the facts and circumstances the question should be submitted to the jury." State to use v. Mason, 112 Mo. 374. The fact that Kahn made a deed of trust when in failing circumstances, and made his wife a preferred creditor for $ 4,000, his nephew for $ 930, his niece for $ 2,000, and the bank of which he was vice-president and a stockholder for $ 1,500, and the further fact that his nephew and niece lived at his house and had a chance at all times to fully understand each other, are all facts and circumstances tending to show fraud and was proper evidence to be submitted to the jury in connection with other facts and circumstances in evidence. Simon Gregory Dry Goods Co. v. McMahan, 61 Mo.App. 499. (3) Appellant's side of the case could not have been prejudiced by the testimony of T. S. Frost. The ruling in Albert v. Besel, 88 Mo. 150, is not applicable to this case. There is a wide distinction between this case and that. (4) The evidence fully supported the verdict of the jury. Reynolds v. Rogers, 63 Mo. 17; Tuggle v. Railroad, 62 Mo. 425; Memphis v. Mathis, 28 Mo. 248; Douglass v. Orr, 58 Mo. 573; McHugh v. Meyers, 61 Mo. 334; Beattie v. Hill, 60 Mo. 72, 572.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

On the thirteenth day of November, 1893, the defendant Kahn, who was at that time, and had been for about eight years prior thereto, the owner of and operating a general mercantile store in Monett, Barry county, Missouri, being heavily indebted and unable to meet his liabilities as they became due, executed a deed of trust to the interpleader, Lehnhard, by which he conveyed to him said stock of merchandise, of the value of from $ 6,000 to $ 12,000, two shares of bank stock which he held in the Commercial Bank of Monett (of which the interpleader was president), of the value of $ 100, and building and loan stock of the proximate value of $ 150, to secure his wife Flora Kahn in the sum of $ 4,000; his nephew Sig. Solomon, $ 930, which he owed him for services rendered as clerk in the store; his niece Sidonia Solomon, $ 2,000, and said bank $ 1,500, all of which was then past due.

Defendant was indebted to plaintiffs in about the sum of $ 2,700, about sixteen hundred of which was due on the note sued on, and the balance on account of goods purchased which was not due at the time of the execution of the deed of trust.

At the time of the execution of said deed defendant was, and had been for some two years prior thereto, vice-president and the owner of two shares of stock in said bank.

Immediately upon the execution of the deed of trust interpleader Lehnhard took possession of the stock of goods, and was in possession thereof, when they were seized under the writ of attachment sued out in this case as the property of the defendant Kahn. Interpleader retained possession of the attached property by giving bond for its delivery, as provided by statute in such circumstances.

The grounds of the attachment were, that defendant had fraudulently conveyed or assigned his property or effects, so as to hinder or delay his creditors; and that he had fraudulently concealed, removed, or disposed of his...