Crow v. Andrews

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 159
• Parties: WAYMAN CROW ET AL., Appellant, v. GEORGE ANDREWS, Defendants; JOHN C. KINNAN, Interpleader.
• Court: Kansas Court of Appeals

24 Mo.App. 159

WAYMAN CROW ET AL., Appellant, v. GEORGE ANDREWS, Defendants; JOHN C. KINNAN, Interpleader.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

APPEAL from Ray Circuit Court, HON. GEORGE W. DUNN, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

C. T GARNER & SON and LAVELOCK & LAVELOCK, for the appellants.

I. It is the settled law of this state that declarations of the party in possession of the property in controversy are admissible in evidence to explain the character of the possession. 2 Whart. Evid. (2 Ed.) sect. 1166; Darrett v Donnelly, 38 Mo. 492; Burgert v. Borchert, 59 Mo. 87. The statement of one of the debtors, that he never consented to sale of the partnership goods, and protested against possession being given to the purchaser, was clearly admissible, and the court erred in excluding it. The law does not authorize the sale of the entire stock of goods, made without the consent and against the protest of one of the partners.

II. The law demands that the claimant of goods be a purchaser for a valuable consideration, and without knowledge of the bad intent of the vendor, and he must pay the price of the purchase before ascertaining the fraudulent purpose, which must be followed by an actual, immediate, notorious, and unequivocal change of possession. Arnhart v Hartwig, 73 Mo. 488; Dougherty v. Cooper, 77 Mo. 532. Therefore, the first and second instructions, given at the instance of the interpleader, are manifestly erroneous. And so as to the third instruction as to the participancy in the fraud. The instructions asked by plaintiffs and refused by the court, contain the true principles of law applicable to this case, and there was abundant evidence to support them. Claflin v. Rosenberg, 42 Mo. 448; Lessen v. Herriford, 44 Mo. 323; Bishop v. O'Connell, 56 Mo. 158; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262.

III. There must be a change of possession, and that change be open, notorious, unequivocal, such as to give notice of the sale. A vendee of a stock of goods cannot, after the purchase, leave such stock of goods under the control and in the possession of the vendor. If he does so the sale will be, as to creditors, fraudulent. Cases cited supra.

J. L. FARRIS, J. E. HALL, JOHN W. SHOTWELL and J. R. HAMILTON, for the respondent.

I. The declarations as to possession which were offered are only hearsay, and cannot affect the title of the vendee. Stewart to use, etc., v. Thomas, Adm'r, 35 Mo. 222. So the statement of one of the partners that he never consented to the sale and protested against possession being given was not admissible, being made more than a month after the sale and delivery of the goods to a bona fide purchaser. A sale of goods made by one of the partners, during the existence of the partnership, is valid as against the firm.

II. The instructions given for respondent, interpleader, taken in connection with those given for appellants, covers the entire law of the case, and are based on the evidence at the trial. Those refused to appellants were properly refused for the reason that there is no evidence that respondent purchased the goods for the benefit of one of the partners, or that he conspired with the partners to purchase the goods in his own name to hinder and delay the creditors of the partners. So the instruction as to possession was properly refused, as being indefinite and misleading. The instruction does not define the kind of possession intended, whether as owner or clerk.

ELLISON J.

This is an action commenced on the thirtieth day of January, 1885, in the Ray circuit court, by attachment, in favor of appellants against James and George Andrews, alleging fraud in the sale of their property to one T. R. Gant and others. By virtue of a writ of attachment issued in said cause, the sheriff of Ray county, on the thirty-first day of January, 1885, levied upon, and afterwards, by order of the circuit court, sold the goods in controversy. At the plea term of said cause, in June, 1885, on the fourth day of the month, respondent, John F. Kinnan, filed his interplea, claiming the ownership of the goods in controversy. The issues were tried by a jury and found for the interpleader. Plaintiffs appeal.

On the trial, respondent, to sustain the issues on his part, introduced several witnesses whose testimony tended to prove that George Andrews and James Andrews, merchants at Vibbard, Ray county, Missouri, doing business under the firm name of Andrews Bros., had purchased of one T. R. Gant, a portion of the stock of goods attached on the second day of January, 1884, and the remainder had been bought of appellants and other wholesale merchants; and at the time of the sale the Andrews Brothers executed a chattel mortgage on said stock of goods to T. R. Gant to secure the payment of their promissory note to him for $1,267.80, due one day after date, which was part of the consideration for said stock of merchandise.

The Andrews Brothers continued in business at Vibbard as general merchants from the second day of January, 1884, until the twenty-fourth day of December, 1884, and T. R. Gant, who then resided in Kansas, on learning that the Andrews Brothers were in failing circumstances, returned to Vibbard to collect his debt, and the day last named he purchased the entire stock of merchandise of said Andrews Brothers, without invoicing the same, for $1,369.30, this being the amount due on his note the payment of which was secured by the chattel mortgage on the said stock of goods. T. R. Gant locked up the house, and in a few hours sold the same stock of goods to respondent, the father-in-law of James Andrews, for $1,369.30, who executed his note to said Gant for this sum, and secured it by a chattel mortgage on other property, which the respondent has paid off. The respondent took immediate possession of the store and employed his son-in-law, James Andrews, and a Mr. Miller, formerly a clerk for Andrews Brothers, to carry on and...