Bigelow v. Stringer

• Decision Date: 31 March 1867
• Parties: JOHN W. BIGELOW et als., Respondents, v. THOMAS STRINGER et als., Appellants.
• Court: Missouri Supreme Court

40 Mo. 195

JOHN W. BIGELOW et als., Respondents,

v.THOMAS STRINGER et als., Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

This was an action of trespass de bonis asportatis brought by the plaintiffs, consisting of several mercantile firms of the city of St. Louis, against the defendants, also consisting of a number of firms in the same city. The plaintiffs alleged that on or before April 2, 1861, they were the owners of a certain lot of goods in a certain store in the town of Tipton, Moniteau county, State of Missouri, and that the defendants on the said 2d of April took them from the possession of the plaintiffs; that on or before the 10th of April, 1861, they were the owners and possessors of a certain lot of goods in the town of Sedalia, county of Pettis and State of Missouri, and that the defendants on the said 10th of April took them from the plaintiffs.

The defendants traversed the allegation of the plaintiffs as to the ownership and possession of the property, and justified the taking of the property in question by virtue of executions obtained against the firm of Williams & Crooks, and the sheriff's levy by virtue thereof.

The plaintiffs then read in evidence the assignment of the goods in question from Williams & Crooks to plaintiffs; this assignment was dated March 20, 1861, and the said Williams & Crooks after reciting that they are indebted to the plaintiffs in various sums, therein enumerated, and that they are desirous of securing to the plaintiffs the debts due them, proceed to declare that

“The parties of the first part do by these presents bargain, sell, convey, deliver and set over unto the parties of the second part their entire stock of goods, wares and merchandise now owned and possessed by them in the towns of Tipton and Sedalia aforesaid, a schedule whereof is hereunto annexed, marked “‘A.’,'DD' &c. [The rest is given in the opinion.]

The following instructions were given for the plaintiffs:

1. It is lawful for a debtor in failing circumstances to pay one debt, or secure the same, and leave other debts unpaid and unsecured, notwithstanding such payment or security may embrace the whole of the property owned by the debtor.

2. If the jury find from the evidence that the writing read in evidence, purporting to be an assignment to the plaintiffs by Williams & Crooks, was executed by one of the parties composing said firm, and that after the execution of said assignment and before the executions read in evidence were placed in the hands of the sheriffs respectively of Pettis and Moniteau counties, the other partner of said firm of Williams & Crooks ratified or approved the act of his co-partner in executing said assignment; and if the jury also believe from the evidence that the plaintiffs at the time said assignment was made were creditors of the firm of Williams & Crooks, and that said assignment was made in good faith to secure such indebtedness, and that the plaintiffs took possession of the goods, wares and merchandise conveyed to them by said assignment, and continued in possession and control thereof up to the time said goods were seized under the executions read in evidence, then the jury should find for the plaintiffs.

3. The burden of proving that the assignment read in evidence by the plaintiffs was made with a fraudulent intent on the part of Williams & Crooks, or either of them, to hinder, delay or defraud their creditors, rests on the defendants; and unless such fraudulent intent has been made to appear from the evidence to the satisfaction of the jury, the jury will presume that it was made with an honest intent.

4. Before the jury can find the conveyance read in evidence void on the ground of fraud, they must not only find that the same was made with a fraudulent design on the part of Williams & Crooks, or either of them, but also that such fraudulent design was participated in by the ersons to whom the goods were conveyed by said instrument or their agents, and unless the same has been established to their satisfaction by the evidence in the cause, they cannot find against the plaintiffs on the issue of fraud.

5. Although the jury may find from the evidence that subsequent to the making of the assignment read in evidence both W. W. Williams and W. P. Tooley made entries of transactions in the books of Williams & Crooks produced in evidence, yet the plaintiffs cannot be affected or prejudiced by said entries in said books, unless the jury find from the evidence that said entries have reference to the sale or disposal of the goods assigned by Williams & Crooks to the plaintiffs, or that the plaintiffs authorized the transactions to which said entries relate.

6. The jury are instructed to disregard that part of the deposition read in evidence of H. Clay Ewing that refers to a conversation in the railroad cars between him and Berry, or Lonergan, about the assignees supplying new goods.

7. If the jury find for the plaintiffs, they should assess the damages at the amount now due on the notes described in the assignment and read in evidence by the plaintiffs, less the amount paid on said notes by W. P. Tooley after said assignment, if the amount due on said notes does not exceed the amount of the value of the property taken by the defendants and interest to the present time; but if the amount now due on said notes does not exceed the value of the property in dispute, then the jury should only assess the plaintiffs' damages at the value of the said property taken less the amount of said payment with interest thereon at six per cent. per annum from the time of the institution of this suit until the present time.

The following instructions were given at the instance of the defendants:

1. The fact that there was a trial of the right of property before the sheriff's jury should not be considered by the jury in this case. The jury should wholly reject this fact from their consideration.

2. Executions are a lien upon the personal property of the debtor from the time they come into the hands of the sheriff of the county where the property is situated.

3. Unless the jury are satisfied by the evidence that Crooks assented to or ratified the execution of the instrument of writing read in evidence by the plaintiffs before the executions of defendants were delivered to the sheriff, the plaintiffs cannot recover in this case.

4. If the jury believe from the evidence that any witness in this case has knowingly sworn falsely to any material fact in this case, they may discredit and reject the whole testimony of such witness.

5. To make the instrument purporting to be signed by Williams & Crooks, and read in evidence by the plaintiffs valid as against the creditors of Williams & Crooks, there must have been an actual delivery of the property, and an actual and continued change of the possession of it; that is, Williams & Crooks must have delivered the property to the grantees in said instrument with the intention of giving them the right to the possession of it, and said grantees must have accepted the property with the intention of holding it under said instrument, and must have continued so to hold possession of it, by themselves or their agents, up to the time it was levied on by the sheriff.

The defendants also asked the following instructions, which were refused:

1. [This instruction is substantially the same as the third given for the defendants.]

2. Although the jury may believe that Williams & Crooks were indebted to the plaintiffs for the debts mentioned in the conveyance read in evidence, yet if they further believe from the evidence that at the time said conveyance was made Williams & Crooks were largely indebted to defendants and others, and that the purpose and intention of Williams & Crooks in making said conveyance was to hinder and delay their creditors, or any of them, for two years, from selling said goods for the payment of their debts, and that plaintiffs or their agents knew of such purpose and intention and assented thereto, and accepted such conveyance for such purpose, then said conveyance was fraudulent and void as against the creditors of Williams & Crooks existing at that time.

3. The court instructs the jury, that if they find from the evidence that at and before the execution of the instrument executed by Williams, read in evidence by plaintiffs, Williams & Crooks were in possession of the goods in controversy, and had John P. Tooley and others in possession and charge thereof for them, and said Tooley and others who had so had charge and possession for Williams & Crooks afterwards remained and continued in such possession of the goods, and continued so to do until the executions in favor of defendants read in evidence were levied thereon, there was not a delivery of said property and an actual continued change of the possession thereof.

4. The court declares the law to be that the instrument in writing dated March 20, 1861, read in evidence by plaintiffs, was and is void as against the creditors of Williams & Crooks then existing.

5. The court declares that upon the evidence in the cause plaintiffs cannot recover.

6. By the instrument in writing purporting to be signed by Williams & Crooks the property therein described was conveyed to the plaintiffs to secure them the debts due them, said property was placed absolutely beyond the control of the other creditors of said Williams & Crooks, not named in said instrument, for two years at least; and the business of selling said property was to be carried on by said plaintiffs, the profits and losses of said business were to be on account of said Williams & Crooks, and the expenses of carrying on the said business were to be borne by said Williams & Crooks.

7. To constitute a valid delivery and change of the possession of property that shall be good against creditors, it is necessary that there should be such an open, apparent and visible change of possession as would...