Fox v. Webster

• Decision Date: 31 March 1870
• Citation: 46 Mo. 181
• Parties: OSMOND FOX et al., Respondents, v. BENJAMIN F. WEBSTER, Appellant.
• Court: Missouri Supreme Court

46 Mo. 181

OSMOND FOX et al., Respondents,

v.BENJAMIN F. WEBSTER, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Pattison, and Rankin & Hayden, for appellant.

I. The mere fact that Cozzens & Co. were insolvent, and that they knew themselves to be so, and that they concealed that fact from the plaintiffs-- supposing such facts to be proved--do not furnish ground for the rescission of the sale. (Hill. on Sales, 307; 2 Pars. on Cont. 270; Sto. on Sales, § 176.) The cases all hold that the design which will vitiate the sale and render it null, is one not to pay for the goods at all--to get them for nothing. (Kirby v. Wilson, M. & Moore, 181; Bristol v. Wismore, 1 B. & C. 514; Ash v. Putnam, 1 Hill, 305; Acker v. Campbell, 23 Wend. 272; Smith v. Smith, 21 Penn. 369.)

II. As a ground of recovery, a general allegation of fraud is not sufficient. It is true, this court has held that where fraud is set up as a defense, then it may be alleged generally. (See Montgomery v. Tipton, 1 Mo. 446; Pemberton v. Staples, 6 Mo. 59; Edgell v. Sigerson, 20 Mo. 494.) But in Hill v. Miller, 36 Mo. 182, the petition contained a general allegation of fraud, and this court held it to be insufficient. This is in harmony with the case in 9 Mo. 182.

Hitchcock & Lubke, for respondents.CURRIER, Judge, delivered the opinion of the court.

The plaintiffs sue in replevin to recover possession of thirteen cases of cigars. The defendant controverts the plaintiffs' title, and alleges that the cigars were by them sold and delivered to James G. Cozzens & Co., and that Cozzens & Co. thereby acquired the legal title to said cigars and a right to their possession. The defendant claims title under Cozzens & Co. as their assignee in bankruptcy.

The plaintiffs' replication to defendant's answer admits the sale to Cozzens & Co., but avers, in avoidance of it, that the sale was fraudulently procured, and that the plaintiffs seasonably repudiated and disaffirmed it.

1. At the trial below, after the evidence for the plaintiffs was closed, the defendant asked an instruction, which was refused, to the effect that the plaintiffs could not recover. The instruction is based on the theory that the evidence failed to show any intent on the part of Cozzens & Co., existing at the date of the purchase, to cheat and defraud the vendors.

The case shows this general state of facts: Cozzens & Co. being in embarrassed circumstances, entered into an arrangement with one McCreery, which had for its object, among other things, the ultimate discharge of the former from their firm liabilities. It was agreed between the parties to the arrangement that Cozzens & Co. should make time purchases to the extent of their credit, and then turn over the property thus acquired to McCreery, through the forms and under the pretense of a sale to him for a valuable and adequate consideration, but it was prearranged that the consideration should in fact be merely colorable and fictitious. It was also further arranged that McCreery, after he should thus acquire the property, should negotiate a compromise settlement with Cozzens & Co.'s creditors, and then divide the ultimate profits of the enterprise with his associates. These general facts are not disputed; nor is it doubted that Cozzens & Co. proceeded to make the contemplated purchases, turning over to McCreery the results, in accordance with their prearrangement with him. Among the property thus transferred was that which forms the subject-matter of this suit. There was evidence tending to show that the cigars sued for were purchased subsequently to the formation of the conspiracy. If so--and that was a fact for the jury to find--there was evidence enough to carry the case to the jury on the question of the existence of a fraudulent intent on the part of Cozzens & Co. at the time the purchase was made. Nor does the fact that there was a secret purpose entertained of forcing an ultimate compromise, by which some part of the purchase money might in the end be paid, at all modify, mitigate, or soften the character of the fraud. The conspiracy arrangement discloses a purpose on the part of Cozzens & Co. never to pay their debts...