Goldstein v. Winkelman

• Citation: 28 Mo.App. 432
• Parties: FRANK GOLDSTEIN, Respondent, v. BERNARD WINKELMAN, Appellant.
• Decision Date: 03 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 432

FRANK GOLDSTEIN, Respondent, v. BERNARD WINKELMAN, Appellant.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Affirmed.

MUENCH & CLINE, for the appellant: There was no proof whatever that the note, which defendant had given Luis, was actually lost. This lack of proof was not supplied by the introduction of the memorandum in evidence. The endorsement of Luis' name thereon was of no effect whatever. It was not coupled with any words of assignment, and, hence, this endorsement also possessed no probative force, and should have been excluded. In ignoring every other question in the case except that of the maker's right to assail the good faith of the transfer to the holder, the court clearly erred. Where there exists, upon the one hand, a person owing a debt fraudulently transferred, and upon the other, a judgment creditor of the fraudulent donor, equity will not drive such judgment creditor to a useless circuit of actions, but will permit the creditor to collect and apply the asset directly so the person owing the debt be willing and will accord to the latter the same weapons in defence which, in a proceeding in equity against him by the judgment creditor, would be used in offence. Edwards, Bills & Notes, 251; Boecka v. Nuella, 28 Mo. 180; Patterson v. Cave, 61 Mo. 439; Bennet v. Pound, 28 Mo. 599. Not merely was it a voluntary transfer, but it was received by plaintiff with the fullest notice of the existing judgment. Such judgment creditor, being the first to avail himself of the asset in question, is entitled to apply the same in satisfaction of his demand, to the exclusion of all other claimants. Hall v. Callahan, 66 Mo. 323; Zoll v. Soper, 75 Mo. 462; Lionberger v. Baker, 88 Mo. 447; Dannan v. Coleman, 8 Mo.App. 594; Bohannon v. Combs, 79 Mo. 305. The requirements of section 3652, of Revised Statutes, were in no wise complied with. If, as is asserted, the note which was claimed (but not proven) to have been lost, was a negotiable promissory note, then no judgment could, in any event, be rendered against defendant without an indemnity bond.

THOS. J. ROWE and T. B. HARVEY, for the respondent: There was proof that the note, which appellant had given Luis, was actually lost. Furthermore, the answer herein admits the loss of the note. Replying to appellant's second point, we simply say that the court, necessarily, in giving a verdict for respondent, found the fact to be that Luis had transferred the note to respondent, and, there being evidence on which to base such finding, the appellate court will not further inquire into it. An administrator cannot impeach the alleged fraudulent conveyance of his intestate; nor can the maker of a valid and undisputed note question the bona fides of a transfer thereof for the reason that said transfer was in fraud of creditors, or was made upon an entirely inadequate consideration. Brown's Adm'r v. Finley, 18 Mo. 375; George v. Williamson, 26 Mo. 190; Merry and Glenny v. Fremon, 44 Mo. 518; Jackman v. Robinson, 64 Mo. 292; Miller v. Ohnsorg, 10 Mo.App. 432. It does not appear from the record whether an indemnifying bond, under section 3652, was given or not. The giving of such bond is a matter for the exclusive benefit of the maker of the lost instrument, and may be waived by him. And, further, it does not appear that the attention of the trial court was called to this matter, and the appellate court will not notice alleged errors not incorporated in motion for new trial.

OPINION

THOMPSON J.

The plaintiff states in his petition, that the defendant, by his promissory note, dated January 21, 1884, promised, for value received, to pay to Theodore Luis the sum of $730, on demand, with interest thereon from date at the rate of five per cent. per annum; that, on or about January 1, 1886, said promissory note was lost or destroyed; that, on March 22, 1886, said Theodore Luis, for value received, sold, transferred, set over, and assigned said promissory note, and all rights and claims which he had thereunder, to the plaintiff, who is now the legal owner of the same; that the plaintiff has demanded payment of the same, which demand has been refused.

The answer admits the making of the note, and contains a general denial of the other allegations of the petition. It then alleges that the note has been paid in full to Anthony Nacke, the administrator of Luis, who was the payee and legal owner and holder of it. It further charges that Luis did not transfer to the plaintiff the note, or any right, title, or interest therein. It then sets up that, in the year 1886, Luis, having obtained from the defendant a statement in writing of the indebtedness evidenced by the note (the same having then been lost or mislaid) wrote his name across said statement in writing, as the defendant is informed and believes, and requested the plaintiff to collect the money therein stated to be due, for the account of Luis; that the plaintiff did not pay any consideration for the transfer of the written statement to him, and that the same, if intended to be to the use of Luis, or to the use of plaintiff, was in fraud of the creditors of Luis then existing; that, at the date of said transfer, there were debts due by said Luis, both judgment debts and other indebtedness; that Nacke, as the administrator of Luis, was the legal representative, both of Luis and of his creditors, and was, both at law and in equity, entitled to receive the payment of the note, and to receipt for the payment, and to discharge this defendant from all further liability thereon, which was done.

At the trial the plaintiff gave evidence tending to show that the death of Luis took place on the twenty-sixth day of March 1886, at the house of the plaintiff's father, where Luis had previously boarded for about three years; that, for about three months prior to the death of Luis, he had been sick for a considerable part of the time, with a disagreeable disease; that the plaintiff had acted as his...