Frederick v. Allgaier

CourtUnited States State Supreme Court of Missouri
Citation88 Mo. 598
PartiesFREDERICK v. ALLGAIER et al., Appellants.
Decision Date30 April 1886

Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

Thos. E. Turney and Lancaster, Thomas & Lacy for appellants.

(1) The questions asked plaintiff on cross-examination in reference to the Ulbright and other mortgages were competent, and the court erred in sustaining the plaintiff's objections thereto, and excluding the same. Eastman v. Premo, 49 Vt. 355; 1 Greenlf's Evid., sec. 53; Castle v. Bullard, 23 How. 172; Irving v. Matley, 7 Bing. 543; Carey v. Heathing, 1 Hill, 316; Wood v. U. S., 16 Pet. 360; Bottomly v. U. S., 1 Story, 144; Buckley v. U. S., 4 How. 259; Taylor v. U. S., 3 How. 209. (2) Whether the facts were admissible as independent evidence or not, the questions were certainly competent on cross-examination of the plaintiff, the party charged with the fraud. Whart. on Evid., secs. 547 and 548; Young v. Smith, 25 Mo. 341. (3) Where a vendor sells property with the intent to hinder, delay or defraud his creditors, and the vendee purchases, because he is getting a good bargain and for the sole purpose of making money by the transaction, and without any intention of aiding or assisting the vendor in hindering, delaying or defrauding his creditors, but with knowledge of the vendor's intent to hinder, delay or defraud his creditors, such sale is fraudulent and void as to the vendor's creditors, notwithstanding the vendee paid full value for the property, and such property is subject to attachment and execution against the vendor. Arnholt v. Hartwig, 73 Mo. 485; State ex rel. Peirer v. Merritt, 70 Mo. 284; Dougherty v. Cooper, 77 Mo. 528; Rupe v. Alkirr, 77 Mo. 641; Bartles v. Gibson, 17 Fed. Rep. 293; Bump on Fraud. Con., 201, 202 and 494. (4) Instructions complete in themselves and purporting to cover the entire case, but which ignore one important element in the case, are not, and cannot be cured by others which do not ignore that element. Goetz v. Railroad Co., 50 Mo. 472; Porter v. Harrison, 50 Mo. 516; Rayston v.Trumbo, 52 Mo. 35; State v. Mitchell, 64 Mo. 191; Thomas v. Babb, 45 Mo. 384. It is error to instruct the jury that “unless they are satisfied,” etc., it should be unless they believe, etc. (5) Fraud need not be proved by direct or positive testimony, but may be shown by the facts and circumstances surrounding and attending the transaction, and where those facts and circumstances taken together show the existence of fraud, and are unexplained, the denial of a fraudulent intent and the assertion of good faith by the party implicated, is not sufficient to rebut the proof of fraud furnished by the facts and circumstances. Kehr v. Sichler, 48 Mo. 96; Cooley on Torts, 475; Bump on Fraud. Con., 600 to 606; Murrey v. Young, 73 Mo. 273, and authorities there cited. (6) If a vendor sells his property for the purpose of putting it out of the reach of his creditors, so that he may be able to settle with his creditors for less than he owes them, and less than the amount realized by him from the sale of his property, such sale is made with intent to defraud creditors. Bump on Fraud. Con., 19 and 20 [3 Ed. 1882]; State, etc., v. Benairt, 37 Mo. 500; R. S., 1879, sec. 2497. (7) If the vendor sells with intent to hinder, delay or defraud his creditors, and the vendee purchases with no intent to aid or assist the vendor in carrying out his intent, and with no knowledge of the vendor's intent, but with knowledge of facts sufficient to put a prudent man upon inquiry as to the vendor's motive in making the sale, such sale is fraudulent and void as to the creditors of the vendor, and the property cannot be held by the vendee against the creditors of the vendor. Bump on Fraud. Con., 201 and 494 [3 Ed. 1882]; The State ex rel. Peirer v. Merritt, 70 Mo. 284; Rupe v. Alkirr, 77 Mo. 643, and authorities there cited; Bartles v. Gibson, 17 Fed. Rep. 297; Atwood v. Impson, 20 N. J. Eq. 156; Baker v. Bliss, 39 N. Y. 70; Avery v. Joharrn, 27 Wis. 251; Davis v. Brickard, 53 Wis. 492.J. F. Harwood and Ramey & Brown for respondents.

(1) Plaintiff's instructions correctly submitted to the jury the issue tendered in defendants' answer. Bank v. Murdoch, 62 Mo. 70; Hasett v. Rust, 64 Mo. 325. When instructions taken as a whole are not calculated to mislead, it is sufficient. Noble v. Blount, 77 Mo. 235. (2) If plaintiff bought the goods bona fide and without any knowledge of Rhodes' intention, and without any intention of defrauding Rhodes' creditors, or to aid or assist him to hinder, delay or defraud his creditors, the sale was valid as to plaintiff. Gates v. Labeaume, 19 Mo. 17; Dougherty v. Cooper, 77 Mo. 528; Hurley v. Taylor, 78 Mo. 238. (3) There was no evidence that plaintiff knew Rhodes was indebted and for that reason plaintiff's instruction, number 4 1-2, was properly refused. Flori v. St. Louis, 3 Mo. App. 231; Schlingmann v. Fielder, 3 Mo. App. 577; Utley v. Tolfree, 77 Mo. 307. A party purchasing personal property is not required to inquire into the motives of the vendor in making the sale. State v. Merritt, 70 Mo. 275. (4) The mortgages offered in evidence were rightly ruled out by the court. They were not relevant. Eddy v. Baldwin, 32 Mo. 369; Greene v. Gallagher, 35 Mo. 226; Coal v. Railroad, 60 Mo. 227; State v. Martin, 74 Mo. 547.

SHERWOOD, J.

Action for the recovery of a sum of money for the seizure and conversion of a portion of a stock of goods levied on by defendants under a writ of attachment and claimed by plaintiff to have belonged to him.

I. The evidence introduced was on the point of the bona fides of the sale of goods made by Rhodes, the then owner, to plaintiff. On this point there was evidence pro and con, and the result was a verdict for plaintiff. Considering the mere question of evidence adduced at the trial, if the verdict had gone either way there would be no ground for any interference.

II. On the point of the admissibility of evidence there was no error. The mortgages on personal property offered in evidence made by third parties to plaintiff, during the years 1874 to 1881, had no sort of bearing as to the quo animo of the transaction then being litigated, and were, therefore, wholly inadmissible. This rule is announced in Hubble v. Vaughan, 42 Mo. 138, and is decisive here. To the same effect is Gutzweiler, Adm'r, v. Lackmann, 39 Mo. 91.

III. The fifth instruction given at the instance of plaintiff was as follows:

“The jury are instructed that although they may believe from the evidence that said Wm. Rhodes sold the goods mentioned in the evidence to plaintiff for the purpose and with the intent to hinder, delay and defraud his creditors, and that said sale and delivery of said goods did in fact hinder, delay and defraud the creditors of said Rhodes, yet they will find for the plaintiff unless plaintiff bought and took possession of said goods with the intent, or for the purpose of hindering and delaying or defrauding the said creditors.”

And the fourth instruction given by the court of its own motion was in these words:

“The jury are instructed that a fraudulent intent either in seller or purchaser, need not be proven by direct and positive proof, but may be proved by facts and circumstances surrounding the transaction. If, therefore, the jury believe from all the facts and circumstances detailed in evidence that the said Rhodes made the sale to plaintiff...

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