Handlin-Buck Mfg. Co. v. Wendelkin Const. Co.

• Decision Date: 05 June 1906
• Citation: 101 S.W. 702,124 Mo. App. 349
• Parties: HANDLIN-BUCK MFG. CO. v. WENDELKIN CONST. CO. et al.
• Court: Missouri Court of Appeals

101 S.W. 702

124 Mo. A. 349

HANDLIN-BUCK MFG. CO. v. WENDELKIN CONST. CO. et al.

St. Louis Court of Appeals. Missouri.

June 5, 1906.

Rehearing Denied and Opinion Modified April 30, 1907.

1. CORPORATIONS — FOREIGN CORPORATIONS — VALIDITY OF CONTRACTS.

An executed sale of goods in this state by a foreign corporation, which has failed to comply with the laws of this state, prescribing the conditions on which foreign corporations may do business in the state, is not void as to third persons, where both parties to the contract assert its validity.

2. SAME—CHATTEL MORTGAGE.

Under Rev. St. 1899, § 1024 [Ann. St. 1906, p. 886], providing that no corporation incorporated under the laws of another state, doing business in this state, shall be permitted to mortgage its property in this state to the injury of any citizen of this state who is a creditor of the foreign corporation, the fact that an interpleader in an attachment suit was in possession of goods of the defendant foreign corporation under a chattel mortgage does not defeat his right to hold the goods as against the attachment, in the absence of proof that when the mortgage was recorded the corporation owed the plaintiff a debt.

3. APPEAL—REVIEW—PRESUMPTIONS.

It is presumed on appeal that the ruling of the trial court as to the right of an interpleader, in an attachment suit, to possession of goods of a foreign corporation under chattel mortgage, was correct, in the absence of an affirmative showing to the contrary.

4. ATTACHMENT—CLAIMS OF THIRD PERSONS— EVIDENCE.

In an attachment suit, evidence held not to show conclusively that an interpleader took possession of the goods of the defendant foreign corporation under a chattel mortgage, and not under an executed bill of sale.

5. FRAUDULENT CONVEYANCES—ACTUAL FRAUD —EVIDENCE.

In an attachment suit, conflicting evidence as to whether property was transferred by the defendant to an interpleader at a valuation less than its actual value was insufficient to show that there was fraud in fact in the transfer of the property.

6. SAME—OBJECT AND EFFECT OF TRANSACTION.

That the effect of a transfer of property by a debtor to a creditor was to hinder and delay other creditors does not render the transaction void, unless it was its object to hinder or delay other creditors.

7. ATTACHMENT—CLAIMS OF THIRD PERSONS— DECLARATIONS OF LAW.

In an attachment suit tried by the court sitting as a jury, the refusal of a request for a declaration that if the court sitting as a jury believed that the object or effect of a bill of sale from the defendant to the interpleader was to hinder, delay, and defraud the creditors of the defendant, and the interpleader participated in the intent, and creditors were hindered, delayed, and defrauded, the bill of sale was void, did not show that the court refused to consider as a question of fact whether the transfer from the defendant to the interpleader was fraudulent.

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

Action by the Handlin-Buck Manufacturing Company against the Wendelkin Construction Company, defendant, and C. H. Alexander, interpleader. From a judgment in favor of interpleader, plaintiff appeals. Affirmed.

The Handlin-Buck Manufacturing Company is a corporation organized under the laws of the state of Missouri, and the Wendelkin Construction Company is a corporation of the same character organized under the laws of the state of Texas, but engaged, to some extent, in business in the state of Missouri at the time of the events to be related, and without having complied with the statutes under which foreign corporations are permitted to carry on business here. The main business of the Wendelkin Company was railroad construction work. For purchases of tools and material to be used in such work, it had incurred an indebtedness to the Handlin-Buck Company of $1,025.63. This indebtedness was contracted at different times over a period extending from January to June, 1902. It constitutes the subject-matter of the present action, which was instituted by attachment in the circuit court of Cape Girardeau county, July 15, 1902. The petition is the one in common use in actions on accounts for merchandise sold and delivered. The grounds of the affidavit for attachment need not be stated, as the appeals are from judgments on the merits on interpleas which were filed for the attached property. There were three such interpleas. One was filed by C. H. Alexander for some specific articles of personal property, namely, boilers, smokestacks, drills, and fittings for boilers. Another interplea was filed by the firm of W. D. Wylie & Co. for certain other personal property, consisting of 28 scrapers, 4 dump carts, 2 pumps, 50 shovels, 50 picks, and one lot of blankets and quilts. All the articles claimed in those two interpleas had been seized under the writ of attachment as the property of the Wendelkin Company. The third interplea was filed by the same C. H. Alexander who filed the first one, and concerned, not articles of property on which the writ had been levied, but a debt due from the firm of Johnston Bros. to the Wendelkin Company, which debt had been attached by garnishment service under the writ of attachment in favor of the Handlin-Buck Company.

In their answers to interrogatories propounded to them, those garnishees stated, in effect, that they were railroad contractors, and had sublet to the Wendelkin Company a portion of a contract which they held to do certain construction work on the St. Louis, Memphis & Southwestern Railroad extension from Cape Girardeau to St. Louis; that they had reserved a certain per cent. of the money earned by the Wendelkin Company in the progress of the work, to protect them (Johnston Bros.) against liens of laborers and materialmen; that the balance owing the Wendelkin Company was $1,555.14, and the garnishees asked the court to be allowed to pay the amount into court in order that it might be determined whether it was held under the plaintiff's attachment lien, or by virtue of a prior assignment of it by the Wendelkin Company to C. H. Alexander, of which assignment the garnishees had been duly notified before they were garnished. In the first two interpleas, Alexander and Wylie & Co., the respective interpleaders, merely stated for a cause of action that the property described in the respective interpleas was not the property of the Wendelkin Company at the time the writ was levied, and that, at that time, the latter company had no right, title, or interest in it, but it was the property of the interpleaders. In his interplea for the debt garnished in the hands of Johnston Bros., Alexander averred that the Wendelkin Company had no demand against Johnston Bros. at the time said firm was garnished, and had no right, title, interest, or claim against them, because, prior to the garnishment, the Wendelkin Company, for a valuable consideration, had transferred and assigned to him (Alexander) the debt due from Johnston Bros., of which Johnston Bros. had notice on June 25, 1902, which date was nearly a month prior to the service of the writ of garnishment, on July 19th.

In its answer to each of the three interpleas, the Handlin-Buck Company denied every allegation in the interpleas, and alleged that the Wendelkin Company, under whom the interpleaders claimed title to the several assets in dispute, was a foreign corporation, organized and existing under the laws of the state of Texas for the purpose of pecuniary gain to its stockholders; that it had engaged in business in this state without complying with the laws thereof, particularly sections 1024, 1025, 1026, and 1315 of the Revised Statutes of 1899 [Ann. St. 1906, pp. 886, 888, 890, 1067]; that therefore the Wendelkin Company could not make a valid transfer of its property, engage in any business in this state, or maintain a suit or action therein; and that the interpleaders, who claimed title under grants and assignments from the Wendelkin Company, could not maintain their interpleas. For those reasons plaintiff asserted that the lien of its attachment against the several assets of the Wendelkin Company should be enforced and given priority over the title asserted by the interpleaders.

Replications were filed to the answers. In Alexander's first replication, relating to the personal property attached, he denied every allegation of the Handlin-Buck Company's answer, except such as were expressly admitted. He then averred that said Handlin-Buck Company, prior to June 27, 1902, had contracted and dealt with the Wendelkin Company in the state of Missouri as a corporation, and that therefore said Handlin-Buck Company was estopped from denying the right of said Wendelkin Company to carry on business and contract and deal as a corporation in the state of Missouri; that said Handlin-Buck Company had brought suit by attachment against the Wendelkin Company as a corporation, and had attached the very goods in controversy between the Handlin-Buck Company and the interpleaders. Wherefore said Handlin-Buck Company was estopped to deny that it paid its indebtedness to the interpleader by turning over to him the goods in controversy, and estopped to deny interpleader's right to collect said indebtedness by accepting the property sold and transferred to him by the Wendelkin Company in part payment of it. Further replying, Alexander alleged that on June 27, 1902, the Wendelkin Company was indebted to him in the sum of $22,000; that on said date said Wendelkin Company owned and was in possession of the goods and chattels described in a certain bill of sale executed by it to Alexander, and that among the goods mentioned in said bill of sale were those in controversy; that said chattels were of the value of $9,950, and in consideration of the payment, to that extent, of the Wendelkin Company's indebtedness to the interpleader, said company sold and delivered said goods to the...