Feder v. Abrahams

• Decision Date: 03 January 1888
• Citation: Feder v. Abrahams, 28 Mo.App. 454 (Mo. App. 1888)
• Parties: LOUIS FEDER et al., Appellants, v. MICHAEL ABRAHAMS et al., Respondents.
• Court: Missouri Court of Appeals

28 Mo.App. 454

LOUIS FEDER et al., Appellants, v. MICHAEL ABRAHAMS et al., Respondents.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. LEROY B. VALLIANT Judge.

Affirmed.

EDWARD CUNNINGHAM, for the appellants: A sale made in reliance upon false and fraudulent representations as to the financial responsibility of the vendee may be rescinded by the vendor unless the goods have, prior to such rescission, fallen into the hands of an innocent purchaser for value. One who takes goods in satisfaction of a precedent debt is not such an innocent purchaser for value, unless a new consideration moves from him. Hess v. Clark, 11 Mo.App. 492; Milling Co. v. Turner, 23 Mo.App. 103; Deere v Marsden, 88 Mo. 512; Oates v. Bank, 100 U.S. 247; Benjamin on Sales [[[[[[Corbin's Ed.] sec. 649. A sale of personal property must be accompanied by the statutory requirements as to change of possession, or it is void as against creditors. Rev. Stat., sec. 2505; Worley v. Watson, 22 Mo.App. 546; Coover v. Johnson, 86 Mo. 538; Hisey v. Goodwin, 90 Mo. 366.

A. BINSWANGER, for the respondents.

OPINION

ROMBAUER J.

The plaintiffs brought an action of replevin against both defendants for the recovery of certain goods, and obtained an order of delivery. The sheriff made return that he took the property out of the possession of Desberger, one of the defendants, and delivered it to one of the plaintiffs. Desberger appeared and answered, denying plaintiffs' ownership and right of possession. Abrahams failed to answer.

Upon the trial the plaintiffs gave evidence tending to show that the goods were sold by them on credit to defendant, Abrahams, July 26, 1886. They also gave evidence tending to show that Abrahams, at that time and prior to the sale, represented his indebtedness as only three thousand dollars, while, in point of fact, it was over seven thousand dollars, it being admitted that he was indebted to Desberger alone, at that date, in the latter amount, and that such indebtedness had increased, at the date of the sale hereinafter stated, to ten thousand dollars, and more.

They also gave evidence tending to show that, at the date of the seizure of the goods on the writ of replevin, they were in a store formerly occupied by Abrahams, but, at that date, in the exclusive possession of Desberger; that the signs about the store indicated Desberger's claim of ownership; that the seizure was made October 13, 1886, and the transfer from Abrahams to Desberger October 11, 1886, by bill of sale purporting to convey the property to Desberger for a recited consideration of $10,752.49. A schedule attached to the bill of sale showed a valuation of the goods at $12,288.56, and a receipt for the consideration mentioned, which was 12 1/2 per cent., or $1,536.07, less than such valuation.

The plaintiff also gave evidence tending to show that, on the day of the transfer, and shortly thereafter, a number of attachment suits were begun against the defendant, Abrahams, by his creditors.

This being all the evidence the court, upon request of the defendant, Desberger, instructed the jury to find a verdict in his favor, which they did; whereupon the court entered judgment in favor of Desberger for the property or its ascertained value, at his election (such value being agreed on between the parties), and dismissed the suit as to defendant, Abrahams. This action of the court is the sole error complained of on this appeal.

The plaintiffs contend that there was substantial evidence tending to show that the goods were obtained on the faith of representations made by Abrahams to plaintiffs at the date of the purchase, and that such representations were false; that this question should have been submitted to the jury. They further contend that there was evidence tending to show that the consideration from Abrahams to Desberger was a preë xisting debt, and not a new and independent consideration so as to constitute Desberger a purchaser for value. From these propositions the plaintiffs conclude that they were entitled...