Gage v. Mears

• Decision Date: 26 April 1904
• Parties: GAGE et al., Appellants, v. MEARS, Interpleader, Respondent
• Court: Missouri Court of Appeals

80 S.W. 712

107 Mo.App. 140

GAGE et al., Appellants, v. MEARS, Interpleader, Respondent

Court of Appeals of Missouri, St. Louis

April 26, 1904

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

Judgment affirmed.

Wilson Cramer for appellants.

The court erred in refusing the second paragraph of defendants' instruction No. 2. All the facts therein enumerated are shown by the evidence, and being undisputed should have been submitted to the jury by instruction as badges of fraud from which the legal inference of a fraudulent purpose on the part of the vendor and of knowledge or notice thereof by the vendee might be drawn. Bump on Frdl Conv. (2 Ed.), p. 34; Dry Goods Co. v. Schooley, 66 Mo.App. 406; Van Raalte v. Harrington, 101 Mo. 602; Barrett v. Davis, 104 Mo. 549.

John A Hope for respondent.

(1) There was no error in giving interpleader's instruction No. 3. It laid down the rule that financial embarrassment merely does not prevent a debtor from selling his property, which is law. Feder v. Abraham, 28 Mo.App. 454; Rupe v. Alkire, 77 Mo. 641; Daugherty v. Cooper, 77 Mo. 528. (2) The court did not err in striking out the second paragraph of defendant's instruction No. 2. It was an unwarranted comment on the evidence and singled out and gave undue prominence to certain particular things. In Forrester v. Moore, 77 Mo. 657, in which a conveyance was attacked as fraudulent the Supreme Court said it was improper to specify in an instruction certain facts as badges of fraud. Steinwender v. Creath, 44 Mo.App. 356; Bank v. Nichols, 43 Mo.App. 397; Noyes v. Cunningham, 51 Mo.App. 194.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J.

This is the second appeal of this case. The facts as developed on the first trial are set out in the opinion of this court rendered at the March term, 1902, reported in 94 Mo.App. 307. The facts developed on the last trial are not materially different from the facts shown on the first trial, with this exception; B. A. Macke testified on the last trial but did not testify on the first trial. His evidence tends to explain the hurry in which the trade between Trawick and Mears was made and the reason it was made after night. His evidence in this regard is as follows:

"Sometime in the latter part of November, 1897, as well as I remember, Mears came to me; he knew my brother at Kennett was in the real estate business, and he owned a lot of wild land in this county--I was representing Mears, assisting him in selling his timbered land that he owned in this county. I had a blue print map with all his lands marked off on that map. A few days before the transaction occurred between Mears and Trawick I had a conversation with Trawick at his store, in which he told me he was going out of the mercantile business, and that he had a position with a wholesale grocery house; that he wanted to sell his stock of goods and go on the road. I think this conversation occurred perhaps before I undertook to assist Mears in selling his real estate. After having the conversation with Trawick--he told me at the time that he was on a trade with George Dorris, at that time I think bartender for Tim Dorris at Hayti. On the evening the trade was finally consummated that night I had accepted a position with my brother in the county clerk's office of Dunklin county, and had boxed my household goods and was preparing to ship them to Kennett, intending to leave on the next morning's train, as his deputy had gone into the campaign and he wanted me to take the deputy-ship. I had gone to Trawick's after some nails, I think; and while there Trawick remarked that if he closed the deal on foot he thought he would leave Hayti about the same time I did. I asked about the deal he was undertaking to make; he told me that Dorris said he would buy the stock of goods that evening if he could raise the money and Dorris was then trying to raise the money he thought. I suggested that if he didn't make the trade with Dorris and Dorris didn't get the money that Mears had put his land in my hands to sell, and if he would as soon have land that he could make a deal with Mears. He says, 'You come back after while and I will let you know about it.' I finished packing my goods and billed them out to Kennett. When I got back to the store--that time of the year I judge it was five o'clock--Jones was clerking for him at the time and had gone to supper. I asked Trawick if he had seen his man yet; he said he had not. He says, 'George is still out and hasn't come in,' but for me to come back after supper and he would let me know definitely about the trade. In the meantime I went to Mears and told him the probability of making a trade and asked him how he would like to trade his land for the goods--I asked Mears to go and examine the stock of goods; I told him to go through the stock of goods and see what he would be willing to give for the stock of goods. He did so. I went to supper. and at Trawick's request came back to the store after supper. Mears was at his place of business. When I got back after supper Trawick told me he hadn't yet seen Dorris. He and I sat there quite a while and talked about the trade indefinitely. He insisted that I should wait a little longer and he would see Dorris. I waited until about 7:30 or 8 o'clock. He went to the saloon and came back and said he and Dorris would not trade; that Dorris had not raised the money; that he told me he thought in all probability he would make the trade with Mears. I told Mears to go and look at the stock of goods; that I thought he could make a trade. In the meantime Trawick had gone out of his store to his supper I think, at least he was out some little while, and I still waited; finally he came back and claimed he would accept the proposition--he told me he would accept Trawick's land for his stock of goods. Then Jones and Trawick--first, by that time Mears had gone home; Mears was in the habit of going home very early; as well as I remember, in fact I never saw his store open an hour after supper while I was there. He had gone home and Trawick and I went down to his house. Trawick suggested that we wait until next morning. I explained to him that I was going away the next morning and if I could be of any assistance in preparing the deeds and consummating the trade I preferred closing it that night. He then suggested that we go and get Jones, and we went to his house; he came to the store and we talked the matter over. They agreed between themselves that the trade would go. Then it was suggested to get Gwinn to come and take the acknowledgment to the deed. I am not sure, but it occurs to me that while they were gone after Gwinn I drafted the deed myself, perhaps with the exception of inserting the name of the grantee. I am not positive that I did it while they were gone. I know I drafted the deed. I had a blue print map of all his lands and I got the description of the lands from that and inserted them in the deed. Whether or not I drafted it while they were gone after Gwinn, or immediately after Gwinn came, I am not positive, but I know I drafted the deed, except perhaps inserting the name of the grantee. I don't know if I did that."

As on the former trial the verdict was for Mears, the interpleader.

We held when the case was here before that there was no reason to doubt that Trawick's purpose in disposing of his property was fraudulent. There is nothing in the abstracts of the evidence to change that opinion in respect to Trawick's motive, but in the light shed upon the transaction by the evidence of Mackey, we are not prepared to say as a matter of law, that Mears participated in the fraud of Trawick, although there is much in the case that tends to show his participation. But whether or not he did so, we think, was a question of fact for the jury to pass upon...