Alberger v. White

• Decision Date: 27 June 1893
• Parties: Alberger et al. v. White et al.; Waugh et al., Interpleaders, Appellants
• Court: Missouri Supreme Court

23 S.W. 92

117 Mo. 347

Alberger et al. v. White et al.; Waugh et al., Interpleaders, Appellants

Supreme Court of Missouri

June 27, 1893

Appeal from Randolph Circuit Court.

Affirmed.

Odon Guitar for appellants.

(1) Instruction number 2 given at the instance of respondent is erroneous, for the reason that it limits the right of the interpleader, Carlisle, "to take and receive a note, and have it secured by deed of trust on the property of Eugene White for any bona fide debt or liability of said White to him" (Carlisle). The main object and purpose of the note and deed of trust was to secure the payment of debts and obligations contracted by the old firm of White & Carlisle (of which interpleader was a member), debts and liabilities due to third parties, and for which the old firm of White & Carlisle were primarily liable. That Carlisle had the unquestioned legal right to secure himself against his "ultimate liability" for such debts there can be no sort of doubt. The bare assertion of the converse furnishes its own refutation. (2) The third instruction given on behalf of respondents usurped the functions of the jury and decided the whole case. Choquette v. Barada, 28 Mo. 491; Leesser v. Boeckhoff, 33 Mo.App. 233; Anderson v. Kincheloe, 30 Mo. 520; Fine v. Schools, 39 Mo. 59; Rose v. Spies, 44 Mo. 20; James v Jones, 57 Mo. 138; Hopper v. Vance, 27 Mo.App 336; Glover v. Duhle, 19 Mo. 360. (3) The fourth instruction given by the court at the instance of the plaintiff in the attachment is clearly bad, for the reason that it enunciates a proposition which in itself is legally and morally impossible. Sexton v. Anderson, 95 Mo. 373.

W Gordon, Gordon & Bass, C. B. Sebastian, S. Turner and E. W. Hinton for respondents.

(1) The court did not err in giving respondents' instructions numbers 1 and 2. The courts of this state have repeatedly held that a conveyance collusively made between debtor and creditor is void as to other creditors, though it covers and includes real indebtedness less than that named in the conveyance. The fact that part of the consideration is false taints the whole transaction. State ex rel. v. Hope, 102 Mo. 410; Kuykendal v. McDonald, 15 Mo. 420; Cordes v. Straszer, 8 Mo.App. 61; McNichols v. Rubleman, 13 Mo.App. 515; Hanna v. Findley, 33 Mo.App. 645. (2) Respondents' third instruction correctly declared the law. Albert v. Besel, 88 Mo. 154; Burgert v. Borchert, 59 Mo. 84. (3) Appellants' third contention is that the fourth instruction on behalf of respondents states a "proposition, morally and legally impossible." The instruction in substance tells the jury that the deed of trust under which the interpleader claimed was fraudulent and void as to creditors of White, if White executed the same with the intent to hinder, delay or defraud his creditors, and Carlisle had knowledge of and participated in such fraudulent design, whether Carlise had a valid debt secured by said deed of trust or not. Garesche v. MacDonald, 103 Mo. 7; Sexton v. Anderson, 95 Mo. 373; Frederick v. Allgaier, 88 Mo. 603; Holmes v. Braidwood, 82 Mo. 616; Meyerberg v. Jacobs, 40 Mo.App. 138; Dearing & Co. v. Collins, 38 Mo.App. 79; Nelson Distilling Co. v. Creath, 45 Mo.App. 169. (4) Instructions themselves correct will not afford grounds for reversal because they authorize a verdict for plaintiff on his theory of the case without embracing in the same instruction defendants' theory of the case, where the defendants did or could present instructions embracing his theory. State ex rel. v. Hope, 102 Mo. 426; Owen v. Railroad, 95 Mo. 169; Daugherty v. Railroad, 97 Mo. 647; Nelson Distilling Co. v. Creath, 45 Mo.App. 169.

Gantt, J. Barclay, Burgess and Sherwood, JJ., concur; Black, C. J., Brace and Macfarlane, JJ., dissent.

OPINION

In Banc

Gantt J. --

In a suit by attachment instituted by respondent in the circuit court of Boone county against Eugene White, among several other creditors, a stock of goods, wares and merchandise and other property was levied upon, which theretofore, on the seventeenth of May, 1889, had been conveyed by deed of trust by the said White to J. H. Waugh to secure the payment of a promissory note of $ 4,000 of that date to James A. Carlisle. The said Waugh and Carlisle interpleaded in said suits, claiming the property under said deed of trust. The respondent answered, admitting the execution of said deed of trust, but charging that the same was executed for the purpose of hindering, delaying and defrauding the respondent and other creditors of the said Eugene White, and to secure an amount largely in excess of any bona fide indebtedness from the said White to the said Carlisle. Upon this answer issue was joined by the interpleaders, the issue submitted to the jury and found for the respondents, and the interpleaders appealed.

The undisputed facts are that, prior to the thirtieth day of January, 1889, the said Carlisle and one C. Meade White, a brother of the said Eugene White, were engaged in the merchant tailoring business in the city of Columbia, under the firm name of White & Carlisle; that on that day Eugene White, under the firm name of Eugene White & Co., purchased all the interest of the said Carlisle in said concern of White & Carlisle for the sum of $ 4,000; $ 1,518.55 to be paid in cash, $ 500 by note payable one day after date, and the remainder, $ 1,981.45, in the accounts due the firm of Carlisle & White, the said Eugene White, by the firm name of Eugene White & Co., further agreeing to stand half the losses on all accounts of Carlisle & White not collected; losses to be adjusted on the first of May, 1889, and to assume all liabilities of said concern and to have all bills not due against said firm transferred to account of Eugene White & Co.; that, contemporaneously with this purchase, Eugene White also bought all the interest of his brother, the said Meade White, in said concern, for which he gave his brother his note for the sum of $ 1,800; that the cash payment was made to Carlisle; the note of Eugene White for $ 500, executed and delivered to him and the accounts of Carlisle & White transferred to him; and the accounts of creditors for goods sold, including that of respondent against the firm of White & Carlisle, transferred to account of Eugene White & Co., at the request and on the representations of Eugene White.

The following letter from respondents, received by Eugene White, was shown to Carlisle:

"Philadelphia, February 13, 1889.

Mr. Eugene White, Columbia, Mo.

Dear Sir: Yours of the eighth received and appears satisfactory. On the strength of your statement we have decided to transfer the account of White & Carlisle to Eugene White & Co., thus releasing Mr. Carlisle from any pecuniary responsibility. We trust our dealings may be mutually satisfactory.

Yours truly,

Alberger, Stoer & Co."

The main witness for the intervenors was Carlisle. His evidence tended to show that it was his understanding that Meade White remained a member of the firm of Eugene White & Co.; that on the same day the written agreement was signed evidencing the sale aforesaid, to-wit, the thirtieth of January, 1889, Eugene White executed and delivered to him a note in the name of Eugene White & Co., of that date, payable one day after date, for the sum of $ 6,000; that said note was taken as collateral security for the performance by the said Eugene White & Co. of their obligations under said contract, which were estimated to be about that amount; that, about the first of May, Eugene White & Co., having failed to pay the debts of White & Carlisle, which they had assumed, and being himself pressed for payment of one of those debts of about $ 2,000, due the Exchange National Bank, he placed the note for $ 6,000 in the hands of his attorney; that suit was brought on it in the circuit court of Audrain county, in which county Meade White lived; that on the seventeenth of May he had an adjustment with Eugene White of the accounts between himself and the firm of Eugene White & Co., under said contract, which resulted in the execution by the said Eugene White in the name of Eugene White & Co. of the note for $ 4,000, secured as aforesaid by the deed of trust under which intervenors claim; that said note was given for the balance approximately ascertained by an estimate of the liabilities of said Eugene White & Co., to Carlisle on the first of May under the contract as per the following account.

Eugene White & Co.,

In Account with J. A. Carlisle:

1889, May 1. -- To purchase price of goods as per contract,

January 30, 1889

$ 4,000 00

Interest on same, three months, 8 per cent

80 00

To liabilities as per said contract assumed by White & Co., and

not discharged per contract.

Alberger, Stoer & Co.

$ 584 00

To note at Exchange Bank

2,000 00

To interest on note at Exchange Bank

42 72

To rent to Trimble

250 00

To balance cash advanced

160 85

To error in charging L. S. Gordon's account to Carlisle

37 50

To error in charging Reynolds' account to Carlisle

45 00

To probable repairs of store as per contract

50 00

$ 7,250 07

CREDITS.

January 30. -- By cash on contract

$ 1,518 55

By interest on same, 3 months, 8 per cent

30 37

By accounts collected on contract

1,430 51

By one-half losses on account, as per contract

234 22

$ 3,313 65

To balance

$ 4,036 43

That after the execution and delivery of the note for $ 4,000 and the deed of trust, the suit on the note for $ 6,000 was dismissed.

The principal witness for respondents was Eugene White, who testified that all the accounts of the creditors for goods against the firm of White & Carlisle were transferred to the account of Eugene White & Co., and that about the middle of February he showed the letters of such creditors to Carlisle,...