Bidault v. Wales

• Decision Date: 31 March 1855
• Citation: 20 Mo. 546
• Parties: BIDAULT et al., Respondents, v. WALES & SONS, Appellants.
• Court: Missouri Supreme Court

20 Mo. 546

BIDAULT et al., Respondents,

v.WALES & SONS, Appellants.

Supreme Court of Missouri.

March Term, 1855.

1. To avoid a sale of goods on credit, it is not sufficient that the purchaser, did not intend to pay for them at the time agreed upon. He must, when he buys, intend never to pay for them, to prevent the title from passing; and this is a question for a jury.

2. Although a vendor may avoid a sale as against the purchaser, yet this cannot be done when the rights of third parties have intervened. This exception however does not embrace creditors of the purchaser seizing the property by attachment or under execution, or taking it by assignment as a security for pre-existing debts.

Whether it would extend to the protection of the lien of a factor of the purchaser for a general balance, or a lien in relation to the specific property, left open.

Appeal from St. Louis Circuit Court.

This was an action by Bidault & Co. to recover sixteen hogsheads of sugar, or the value, consigned to defendants as the factors of one Whiting, who claimed the sugar under an alleged sale to him by the plaintiffs, which, as the latter insisted, did not pass the title by reason of his fraud. The allegations of the original petition are stated in the opinion of the court when the cause was formerly here. (19 Mo. 36.) After it was remanded, the plaintiffs amended their petition, by stating that “Whiting purchased and received the possession of the sugar without any intention of paying for the same, and with the purpose of cheating and defrauding the plaintiffs out of their property.” The defendants took issue upon this additional averment. They further alleged that when the sugar was consigned to them, Whiting was indebted to them, and that this indebtedness had not been paid, and that they had been summoned as garnishees in a suit against Whiting, brought by a party to whom he was indebted in a larger amount than the balance which would remain in their hands after payment of their demand. The cause was tried before a jury. There was evidence that the sugar was bought of plaintiffs in New Orleans on a credit of ten days by an agent of Whiting for him and under his instructions, and was shipped to defendants at St. Louis to be sold on his account; that he was insolvent at the time of giving the instructions, and at the time of the purchase, and was aware of his insolvency; that for some time previous he had been making purchases of sugar and with the proceeds paying for preceding purchases; that his agent had made a previous purchase of plaintiffs which had been paid for with the proceeds of sugar subsequently bought of another party; that he was not in New Orleans at the time of the last purchase from plaintiffs, but arrived four or five days afterwards, and drew drafts against the sugar in favor of other parties to whom he was indebted for previous purchases, for one-third of the amount of his indebtedness to them respectively, and offered to give plaintiffs a draft for one-third of the amount of his indebtedness to them, they granting an extension for the balance, which they refused to accept.

The defendants offered to show the state of accounts between them and Whiting when they received the sugar, but this evidence was excluded, and an exception taken. They also offered to read in evidence the judgment in the suit against Whiting and the proceedings against them as garnishees in that suit. This evidence was likewise excluded. All the instructions asked by the defendants were refused, and the court, of its own motion, gave one which is set out in the opinion of the court, under which there was a verdict for the plaintiffs. The defendants appealed.

Knox & Kellogg, for appellants.

I. The instruction given by the court is erroneous, as it asserts the doctrine that a man who does an honest act with a worthy motive is guilty of fraud because he was insolvent and knew of his inability to meet his engagements, and pay his debts as they matured.

II. The court erred in rejecting the evidence of the state of accounts between Whiting and the appellants.

Glover & Richardson, for respondents.

I. The principle is well established that if a vendee, at the time of a sale, knows of his inability to pay, and purchases on credit with the preconceived design not to pay, the title to the property does not pass. (Bidault v. Wales, 19 Mo. 37; Earl of Bristol v. Wilsmore, 1 Barn. & Cress. 520; Noble v. Adams, 7 Taunt. 59; 12 Pick. 312.)

II. The question of intent being one for the jury, this court will not look into the evidence, to see if it supports the verdict.

III. The evidence as to the state of accounts between the defendants and Whiting was properly excluded, because, if no title passed by the sale to Whiting, the defendants had no right to make their debt against Whiting out of plaintiffs' property. For the same reason, the judgment against Whiting and the garnishment of the defendants in that suit were immaterial.

IV. The instruction given was more favorable to the defendants than the law required. It required the jury to find, not only that Whiting did not intend to pay when he made the purchase, but to find the further fact that the purchase was but a contrivance on his part to sustain his credit.

LEONARD, Judge, delivered the opinion of the court.

1. This judgment must be reversed on account of the instruction given to the jury as to the law of the case.

When it was here before (19 Mo. 36,) this court held in substance that a purchaser did not acquire a valid title to property if he got it under the mere form of a purchase, made with a preconceived design of never paying for it; but that mere inability to pay, even if known to the purchaser at the time of the purchase and concealed from the seller, did not avoid the sale; and we think the law was correctly laid down; but however that may be, it was the judgment of this court, and must be...