Carolus v. Koch

• Decision Date: 31 October 1880
• Citation: 72 Mo. 645
• Parties: CAROLUS, Appellant, v. KOCH.
• Court: Missouri Supreme Court

72 Mo. 645

CAROLUS, Appellant,

v.KOCH.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Strong & Mosman for appellant.

Plaintiff cannot be charged with a want of attention and care, in failing to discover the active fraud of defendants. He was bound to answer and put in every defense arising naturally out of the facts and circumstances attending the purchase of the goods. But he was not bound to suspect that the defendants, his wholesale dealers, were perpetrating a fraud on him. He was not bound to be ever on the alert, to catch the slightest indication of a dishonest purpose on their part. Our courts have yet to decide that success is so potent a disinfectant that it removes all taint of fraud, that commercial business transactions are to be carried on in a state of “armed neutrality,” and each party is to view the other as a scoundrel who must be closely watched. The wholesale merchant as well as the criminal at the bar is presumed to be innocent until he has been proved guilty, and retail dealers have a right to deal with them on the faith of that presumption. Plaintiff had a right to believe that defendants had honestly stated their account--to accept and act upon their statement of the account when it was concurred in by the man who for him had transacted the business with defendants. It does not lie in the defendants' mouths to charge plaintiff with negligence and want of care in failing to suspect them and his agent of rascality. Bresnehan v. Price, 57 Mo. 422; Damschroeder v. Thias, 51 Mo. 100; Davis v. Staples, 45 Mo. 567; Sauer v. Kansas City, 69 Mo. 46; Ritter v. Democratic Press Co., 68 Mo. 458; Matson v. Field, 10 Mo. 100; Reed v. Hansard, 37 Mo. 199; Perry v. Siter, 37 Mo. 273.

Judson & Motter for respondents, cited Reed v. Hansard, 37 Mo. 203; Marine Ins. Co. v. Hodgson, 7 Cranch 337; Taliaferro v. Branch Bank, 23 Ala. 755; McGrew v. Tombeckbee Bank, 5 Porter (Ala.) 547; Powers v. Butler, 3 Green Ch. (4 N. J. Eq.) 465; Miller v. Gaskins, Sm. & Mar. Ch. 524; Smith v. Lowry, 1 John. Ch. 321; Marriot v. Hampton, 7 T. R. 269; Ritter v. Democratic Press Co., 68 Mo. 459; Crim v. Handley, 94 U. S. 658; Story Eq. Jur.; (12 Ed.) §§ 894, 895, 1572.

NORTON, J.

This is a suit brought in the circuit court of Buchanan county to enjoin defendant Sullivan from levying an execution upon the property of plaintiff to satisfy a judgment rendered against plaintiff by a justice of the peace in favor of defendants Koch, Chew & West. In the circuit court defendants objected to the introduction of any evidence on the ground that the petition did not state a cause of action. This objection was sustained, and judgment rendered for the defendants, and the only question presented for our determination is as to the sufficiency of the petition. The petition, after setting out a state of facts which would have constituted a complete and perfect defense in the suit before the justice of the peace, which resulted in the judgment on which the execution sought to be enjoined was issued, alleges that “said facts first came to his knowledge since the rendition of the judgment and since the time allowed by law for an appeal.” In cases where, after judgment, defendant therein invokes the restraining powers of a court of chancery in matters which would have afforded a good defense at law, he must show by his bill that his failure to discover and avail himself of such defense is not attributable to any negligence or want of diligence on his part, but to fraud, accident or act of the opposite party. The mere allegation that he was ignorant of the facts constituting a defense, is not sufficient. Taliaferro v. Branch Bank, 23 Ala. 755. “When the facts existed before the trial at law, upon which relief in equity is claimed, and were known to the party suing in equity, or might have been known or discovered by...