Calkins v. Farmers' And Mechanics' Bank
| Decision Date | 27 April 1903 |
| Parties | R. R. CALKINS, Trustee, etc., Respondent, v. FARMERS' AND MECHANICS' BANK, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Daviess Circuit Court.--Hon. J. W. Alexander, Judge.
REVERSED nisi.
Aleshire & Benson and Hamilton & Dudley for appellant.
(1) The court erred in permitting plaintiff to introduce in evidence the creditor's bill in bankruptcy and the order of adjudication thereon by Judge PHILIPS. Also erred in permitting plaintiff to introduce the evidence of Ed. E Aleshire showing his presence in St. Joseph, Missouri, when 'Squire E. Davis was being examined, and the introduction of the letter from Ed. E. Aleshire on the same subject. Glascock v. Railroad, 69 Mo. 589; Griffith v Hanks, 91 Mo. 109; Stephens v. Railroad, 96 Mo 207; Durant v. Coal Co., 97 Mo. 62. (2) Incompetent evidence is presumed to be prejudicial and it is impossible to tell what effect such evidence may have had upon the jury. The burden is upon respondents to show its innocuous character, and unless so shown the judgment will be reversed. Dayharsh v. Railroad, 103 Mo. 570; Lumber Co. v Tie Co., 79 Mo.App. 543; Miles v. Railroad, 76 Mo.App. 484; State v. Taylor, 118 Mo. 161. (3) The court erred in permitting plaintiff to read in evidence the motion filed by defendant in the Gentry Circuit Court, requiring plaintiff to give security for costs. (4) The latter part of plaintiff's instruction No. 2 is clearly erroneous. An instruction which assumes the existence of a fact in dispute is erroneous. Shoe Co. v. Hilig, 70 Mo.App. 301; Linn v. Massillon B. Co., 78 Mo.App. 111; Turner v. Loler, 34 Mo. 461; Wells, v. Zallee 59 Mo. 509; Walters v. Cox, 67 Mo.App. 299; Robertson v. Drane, 100 Mo. 273; Meriwether v. Cable Co., 45 Mo.App. 528; Dulaney v. Sugar R. Co., 42 Mo.App. 659; State v. Wheeler, 79 Mo. 366; Comer v. Tayler, 82 Mo. 341. (5) The verdict is not responsive to the instructions as it is the duty of the jury in finding a verdict for plaintiff to compute the interest that is due.
Karnes, New & Krauthoff, W. C. Gillihan and Geo. W. Groves for respondent.
(1) Plaintiff could not show what was adjudicated in the bankruptcy proceedings against Davis except by introducing in evidence the petition in bankruptcy and adjudication made thereon. Such evidence is not only competent, but the only way to prove the facts adjudicated by the bankruptcy court. Rosenfeld v. Siegfried, 91 Mo.App. 169. The adjudication by itself would simply show that Davis was adjudged a bankrupt; nothing more. By introducing the petition and adjudication made thereon it was shown that on December 25, 1900, Davis committed an act of bankruptcy by paying the bank. (2) Bankruptcy proceedings are proceedings in rem and all creditors are parties thereto and bound by the matter adjudicated therein. Thornton v. Hogan, 63 Mo. 143; In re American Brewing Co., 112 F. 752. (3) Where fraud is an issue, a court will permit the evidence to take a wider range for the purpose of uncovering all of the facts. The slightest circumstances are admissible in cases of fraud. Stewart v. Severance, 43 Mo. 322; In re American Brew. Co., 112 F. 752; Landis v. McDonald, 88 Mo.App. 335; In re Elmira Steel Co., 5 Am. Bank. Rep. 484; Trust Co. v. Benbow, 3 Am. Bank. Rep. 9; In re Minnie McGee, 5 Am. Bank. Rep. 262; Johnson v. Wald, 93 F. 640.
--This action is by a trustee in bankruptcy to recover back from defendant $ 1,000 paid to it by 'Squire E. Davis who had been duly adjudged a bankrupt by the Federal court. The trial court rendered judgment for plaintiff.
It appears that Davis owed defendant a note for $ 1,000, given June 30, 1900, and due December 30th, of that year. That on Christmas day, a short time previous to the maturity of the note, Davis and the defendant's officers (cashier and president) together with their respective attorneys had a meeting and conference with reference to this note and to devise means for its payment. Davis told defendant's officers that he could not pay the note and that he "could not pull through." The cashier did not know of any property Davis owned except his stock of goods, estimated at $ 2,500, a small lot of household furniture and his wearing apparel. He suggested to him to pay the note by selling his stock. That afternoon Davis sold the stock for $ 1,250, receiving in payment the purchaser's check for that amount and indorsing it over to defendant. The defendant cancelled his note and paid him the balance of $ 250 in currency.
The evidence in the cause is so nearly conclusive against defendant that it was perhaps only out of abundance of caution that the trial court refused the peremptory instruction offered by plaintiff. The foregoing statement does not contain all that was shown by direct statement of fact and by reasonable inference that would lead to the inevitable conclusion that defendant's action in reference to the note was clearly within the terms of the bankrupt law forbidding preferences.
The objections presented here relate principally to the admission of evidence. It is contended that there was error in permitting the fact of the adjudication of bankruptcy to be shown to the jury. It was proper to show this. That adjudication conclusively established that Davis was insolvent and intended a preference in paying the note...
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