Douglass Candy Co. v. Shenk
| Decision Date | 30 April 1917 |
| Docket Number | No. 12392.,No. 12393.,No. 12394.,12392.,12393.,12394. |
| Citation | 194 S.W. 754,195 Mo. App. 592 |
| Parties | DOUGLASS CANDY CO. v. SHENK et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge.
Action by the Douglass Candy Company against Milo Shenk and Ethel Shenk, composing the firm of M. & E. Shenk, with Charles Schalenhamer and F. E. Kenton, composing the firm of Schalenhamer & Kenton, and William Borcherding and Henry Borcherding, composing the firm of Borcherding Bros., as interpleaders. From a judgment for defendants and interpleaders, the plaintiff appeals. Affirmed.
William Traughber, of Carrollton, for appellant. Conkling & Withers, of Carrollton, and Guy Whiteman, of Norborne, for respondents.
On November 30, 1915, defendants, Milo Shenk and Ethel Shenk, copartners, doing business as M. & E. Shenk, were engaged in the bakery and confectionery business in the town of Norborne, Mo., and on said day by a verbal sale for cash sold and delivered their stock of merchandise, fixtures, and equipment to interpleaders, Charles Schalenhamer and F. E. Kenton, copartners, doing business as Schalenhamer & Kenton. About 15 days thereafter said Schalenhamer & Kenton sold a portion of said property to interpleaders Borcherding Bros. On January 27, 1916, plaintiff filed suit in the circuit court against defendants on an account founded on a sale of merchandise from plaintiff to defendants, and on the same day sued out of said court a writ of attachment against said defendants and in the affidavit of attachment set up the seventh ground of attachment as contained in the statutes. Section 2294, R. S. 1909. On April 10, 1916, or 130 days after the completion of the sale by defendants to Schalenhamer & Kenton, as aforesaid, plaintiffs filed an amended affidavit of attachment, again setting up the seventh ground of attachment, and, in addition thereto, setting out specifically the transaction and alleging it to have been a fraudulent conveyance under the Bulk Sales Law. Laws 1913, p. 163. To the amended affidavit in attachment defendants and interpleaders filed a motion to strike out, which was overruled, and thereafter the defendants filed a pleading described therein as a plea in the nature of a plea in abatement to said amended affidavit of attachment, consisting of a general denial and plea of the 90-day statute of limitations contained in the said Bulk Sales Law, and the interpleaders herein filed their separate interpleas claiming ownership and right of possession of the property attached, and pleading the said 90-day statute of limitations contained in the Bulk Sales Law. At the trial the court, sitting as a jury, gave a declaration in favor of the interpleaders and the defendants to the effect that the action was not commenced within 90 days after the sale, in that the first affidavit alleging the seventh ground of attachment was not sufficient to cover a sale or conveyance of property not evidenced by written instrument; that the amended affidavit setting up a claim founded upon an alleged fraudulent conveyance under the Bulk Sales Law, being filed after 90 days from the date of the sale, alleged an action that was barred, for the reason that it was not set up before the running of said 90-day statute of limitations.
The first point made by appellant is that in alleging the seventh ground of attachment in its original affidavit it was not necessary for it to have filed an amended affidavit in order to have alleged a cause of action as proven by the evidence.
The seventh ground of attachment is:
"Where the defendant had fraudulently conveyed or assigned his property or effects, so as to hinder or delay his creditors."
And in order to understand the controversy it is also necessary for us to consider the eighth ground of attachment, which provides:
"Where the defendant has fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors."
The evidence in this case shows that the sale from the defendants, M. & E. Shenk, to interpleaders Schalenhamer & Kenton, was a verbal sale. Appellant claims that said sale was an assignment such as contemplated by the seventh subdivision of the statute, although not in writing, while the respondents deny this contention. Webster states that in legal contemplation an assignment "is a transfer of title or interest by writing." However, that this is a limited or restricted definition is apparent, for it is said in 4 Cyc. 6:
"The term `assignment,' as originally used, signifies a transfer, between living parties, of all kinds of property, real, personal and mixed, whether in possession or action, and whether made by delivery, indorsement, transfer in writing, or by parol, and includes as well the instrument by which the transfer is made as the transfer itself."
It is said in Johnson v. Brewer, 134 Ga. 828, 68 S. E. 590, 31 L. R. A. (N. S.) 332, that:
It seems to us that the question to be determined is whether the word "assignment" as used in the seventh subdivision of the attachment statute is to be taken in its limited or broad sense. It has been often held that the seventh and eighth subdivisions of the attachment statute are separate and distinct, and that it requires a different state of facts for each, and that proof of facts upon which subdivision 7 could...
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