Keet-Roundtree Shoe Company v. Lisman
| Decision Date | 30 March 1899 |
| Citation | 50 S.W. 276,149 Mo. 85 |
| Parties | Keet-Roundtree Shoe Company, Appellant, v. Lisman et al.; Lutter, Interpleader |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed.
G. M Sebree and J. S. Farrington for appellant.
(1) This case should not have been submitted to the jury, except on a peremptory instruction to find for plaintiff interpleader knew of the fraud in the sale in time to stop the payment of his draft. It was his duty to do so. Arnholt v. Hartwig, 73 Mo. 485; Dougherty v Cooper, 77 Mo. 532; Young v. Kellar, 94 Mo. 581. (2) The plaintiffs instructions number 13, 14 and 15 correctly declare the law and should have been given. Interpleader had no right to assist defendants to get their draft cashed; it was his duty to stop payment. Dougherty v. Cooper, 77 Mo. 532; Young v. Kellar, 94 Mo. 581; Wetmore v. Woods, 62 Mo.App. 265; Greenlee v. Marquis, 49 Mo.App. 294. (3) The failure, of a party against whom fraud is charged, to produce as witnesses, persons who are alleged to have participated in the fraud, if within reach, will raise a presumption in favor of the charge, and plaintiff's instruction number 18 should have been given. Bump on Fraud. Conv. (3 Ed.), sec. 65; Baldwin v. Whitcomb, 71 Mo. 651; Cass Co. v. Greene, 66 Mo. 589. (4) Instruction number 6 given on behalf of interpleader tells the jury that the draft for $ 2,200, was a payment for that amount. This is not the law. An unpaid check is not a payment until presented and paid, and the draft in this case was nothing more than a check. Tiedeman on Com. Paper, sec. 456; Bank v. Bank, 58 Mo.App. 17; Albers v. Bank, 85 Mo. 173; George v. Rhodes, 66 Ill. 277; Small v. Mining Co., 99 Mass. 277. An order drawn by a bank on another bank for the payment of a sum certain to a named person and payable on demand is a check. State v. Vincent, 91 Mo. 662.
A. H. Livingston for respondent.
(1) There is no testimony that tends to show that respondent knew of any fraud on part of Lisman & Ramsey, nor were the facts sufficient to create a suspicion of fraud, nor is the testimony sufficient to show fraud on the part of Lisman & Ramsey. Baker v. Harvey, 133 Mo. 653; Dougherty v. Cooper, 77 Mo. 531; Van Raalte v. Harrington, 101 Mo. 602; State to use v. Mason, 102 Mo. 374; Sammons v. O'Neil, 60 Mo.App. 530; Bank v. Worthington, 145 Mo. 91. (2) The sale was absolute and complete, and the payment then and there made in full. The draft even if it be so called, was negotiable under the laws of this State and the law merchant. Shoe Co. v. Crosswhite, 124 Mo. 34. (3) Instructions numbers 13, 14 and 15, asked by the appellant and refused are not the law, and were properly refused. There is no rule of law that goes so far, and the cases cited, in no wise sustain the proposition in such instructions. (4) Appellant's instruction number 18 was properly refused. The proposition therein contained has no application whatever to the facts of this case. The burden is on the attaching creditor to establish the fraud. Albert v. Besel, 88 Mo. 150; Martin v. Fox, 40 Mo.App. 664. Appellant's position on this point is peculiar to say the least of it. The witness Ramsey was present in court in obedience to a subpoena on part of appellant, was sworn as one of his witnesses. Appellant then offers to read his deposition. This of course he could not do. He fails to call his witness, and then asks the court to declare that a presumption of fraud is raised against us because we failed to introduce his witness. The witness was accessible to either party, therefore no presumption of fraud arises from a failure to introduce him. Bank v. Worthington, 145 Mo. 91; Kentner v. Verwig, 130 Mo. 196.
In September, 1895, plaintiff began suit against defendants in the circuit court of Howell county on an open account, in aid of which an attachment issued, under which the sheriff seized the stock of merchandise in question, whereupon Lutter filed a statutory interplea claiming that the attached property belonged to him. Plaintiff by answer denied Lutter's title and averred that the goods had been transferred to him by defendants to defraud their creditors, and that Lutter knew it at the time. The case was tried on that issue and the trial resulted in a verdict and judgment for the interpleader. Plaintiff in due time filed a motion for a new trial which was overruled, bill of exceptions filed and the cause brought here on appeal.
Upon the trial the interpleader introduced evidence tending to prove that at the time of the purchase of the stock of goods by him from defendants they owed him $ 1,600, for money loaned, which was evidenced by their note then due; that in payment for the goods he delivered them their $ 1,600 note and $ 550 in cash and a check for $ 2,200 dated July 16, 1895, drawn by First National Bank of Darlington, Wisconsin, on Commercial National Bank of Chicago, to the order of E. A. Lutter, the interpleader, and by him indorsed and delivered to defendants; that the value of the stock was $ 5,000 to $ 6,000; that they first offered it to him at $ 5,000 but the price finally agreed on was $ 4,350, which was paid as above stated. That at the time of the purchase interpleader had no notice of any intent on the part of defendants to defraud their creditors if there was such intent; that immediately after the purchase interpleader took possession with a view of continuing the business, and was so in possession when the sheriff seized the goods under the attachment in this case.
On the part of the plaintiff the evidence tended to prove that defendants at the time of the sale owed about $ 5,000 for merchandise debts, and the next day after the sale notified their creditors that they had sold out and offered to settle in full at fifty cents on the dollar; that two days after the sale the plaintiff and one or two other mercantile creditors sent representatives to Willow Springs, which was the scene of the business, to investigate the matter. At this time the defendants still held the $ 2,200 check, and interpleader knew it, but they requested him to say nothing to the representatives of the creditors about it, for fear they would interfere with the collection; that in compliance with this request the interpleader declined to give the creditor any information on the subject. The check was cashed in Chicago several days after and defendants received the money.
Appellant makes several assignments of error, but the only one which is seriously insisted upon is the action of the court in refusing to treat the omission of interpleader to give information to the creditors about the $ 2,200 check, and failing to stop the payment of the check after notice that creditors suspected fraud, as evidence of fraud on his part, or rather as evidence of his participation in the alleged fraud of the defendants.
The concluding paragraph in the brief of the learned counsel is:
The case will therefore be considered from that standpoint.
If the goods in question were sold in fraud of the creditors of the defendants, then, before...
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