Fields v. Thomas

• Decision Date: 17 July 1926
• Docket Number: No. 3927.,3927.
• Citation: 286 S.W. 133
• Parties: FIELDS v. THOMAS.
• Court: Missouri Court of Appeals

286 S.W. 133

FIELDS v. THOMAS.

No. 3927.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by C. D. Fields against Ben Thomas. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

McKay & Peal, of Caruthersville, for appellant.

COX, P. J.

Action for conversion of certain cotton. Plaintiff recovered, and defendant appealed.

This action was begun before a justice of the peace. The statement filed in that court by the plaintiff alleged that one Wm. Macklin was indebted to plaintiff, and that plaintiff had sued Macklin by attachment, and that certain cotton had been levied upon under the attachment writ; that plaintiff had recovered judgment on the attachment and on the merits in that case for $128.30; that after the attachment had been sustained the property attached could not be found because the defendant had sold the cotton and appropriated same to his own use. No answer was filed, but the defense was made that defendant had bought and paid for the cotton before the attachment writ was levied.

The evidence on the part of plaintiff was to the effect that Wm. Macklin was indebted to him; that he sued Macklin by attachment and levied upon his interest in 30 acres of cotton grown by Macklin on the land of defendant; that before instituting the suit he inquired of defendant whether Macklin was indebted to him, and defendant answered that he was not and advised plaintiff to proceed to attach and collect from Macklin. Plaintiff then brought the suit and obtained judgment, but the cotton was then gone and he could collect nothing. The defendant denied making to plaintiff the statements plaintiff testified to his making, and claimed that he bought and paid for Macklin's interest in the cotton before the attachment was levied upon it. The alleged purchase by defendant occurred on the same day of the levy and immediately before the levy, and at a time when, according to plaintiff's testimony, the officer was in view of the parties and ready to make the levy, and defendant knew the officer was there for that purpose.

The point is made that a demurrer to the testimony should have been sustained. We do not think so. The evidence would warrant a finding that Macklin and defendant were acting in conjunction to defeat plaintiff's action, and that the sale by Macklin of the cotton to defendant was fraudulent and therefore void as against an attaching creditor.

Two instructions were given on part of plaintiff, and both of these are alleged to be erroneous. No. 1 "told the jury that if defendant purchased the interest of Macklin in the cotton just preceding the attachment, and at that time defendant knew that plaintiff intended to attach the property, and that defendant advised plaintiff to attach it, they should find for plaintiff unless they should believe that defendant was an innocent purchaser; further, that if defendant knew that plaintiff intended to attach the property and had advised plaintiff to do so, then the purchase by defendant from Macklin was fraudulent and void as to the rights of plaintiff. This instruction was clearly erroneous. It is contradictory in its `terms. In the first paragraph of the instruction the jury are told that if prior to the purchase of the cotton from Macklin defendant knew that plaintiff was about to attach the cotton and had advised plaintiff to attach it, then they should find for plaintiff unless defendant was an...