Hazell v. Bank of Tipton
| Decision Date | 07 May 1888 |
| Citation | 8 S.W. 173,95 Mo. 60 |
| Parties | Hazell, Assignee, Plaintiff in Error, v. Bank of Tipton |
| Court | Missouri Supreme Court |
Error to Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed and remanded.
Cosgrove & Johnston, Moore & Williams and Smith, Silver & Brown for plaintiff in error.
(1) The trial court erred in permitting the bank to enquire of the witness Reeves, whether any steps were taken by the assignors, two or three days after the assignment, to compromise, with their creditors. No participation of the assignee in said compromise was shown. Crow v Beardsley, 68 Mo. 435; Byrne v. Becker, 42 Mo 269; State v. Benoist, 37 Mo. 500; Gates v Lebaume, 19 Mo. 25; Harcourt v. Halcomb, 89 Ind. 104. (2) The defendant failed to make out a primafacie case, and the demurrer to the evidence should have been sustained. Morgan v. Durfee, 69 Mo. 469; Powell v. Railroad, 76 Mo. 80. Fraud is a fact and when mere circumstances are relied on to prove it, they must be such as to raise strong presumptions of its existence. Loomis v. Higgins, 5 West. Rep. 408; Wait v. Kellog, 5 West. Rep. 736. (3) The deposition of Gilbert Elliott was erroneously excluded. Petring v. Chrisler, 90 Mo. 649. The interpleader was entitled to open and close the case. Burgert v. Borchert, 59 Mo. 80; Meagher v. Biggs, 46 Mo. 65; Gray v. Parker, 38 Mo. 160; Porter v. Jones, 52 Mo. 399. (4) The fifth instruction, to the effect that there was no evidence of fraud or knowledge thereof on the part of the assignee, should have been given. Albert v. Besel, 88 Mo. 150; Renney v. Williams, 89 Mo. 139; Bump on Fraud. Con. 42. (5) The tenth, eleventh, and twelfth instructions should have been given for the interpleader. The deed of assignment was not fraudulent, merely because it had the effect of hindering and delaying creditors in collecting their debts. Albert v. Besel, 88 Mo. 150; State ex rel. v. Benoist, 37 Mo. 501; Gates v. Lebaume, 19 Mo. 17; Shelley v. Boothe, 73 Mo. 77. (6) So interpleader's thirteenth and sixteenth instructions should have been given. Murray v. Cason, 15 Mo. 379; Henderson v. Henderson, 55 Mo. 555. (7) The court committed error in giving instructions for defendant in error. (8) The court erred in refusing to submit the special interrogatories as requested by interpleader. Laws 1885, p. 213; Clegg v. Waterbury, 88 Ind. 21.
Draffen & Williams, G. P. B. Jackson, L. F. Wood and W. P. Johnson & Son for defendant in error.
(1) The court properly awarded the opening and closing of the case to the plaintiff in the attachment. Porter v. Jones, 52 Mo. 399; McHale v. Oertel, 15 Mo.App. 583; St. Louis v. Ins. Co., 52 Mo. 529; Harvey v. Sullens, 56 Mo. 372. (2) The declarations of the assignors made before the assignment were competent to prove their intent. Holmes v. Braidwood, 82 Mo. 610; Stowell v. Hazelett, 66 N.Y. 635; Smith v. Mitchell, 12 Mich. 180; Goodwin v. Kerr, 80 Mo. 276. (3) The contention, that, because all the creditors are by statute entitled to the benefit of the assignment, it is not fraudulent, cannot be sustained. If the intent was to hinder, delay, or defraud, the assignment is fraudulent. Goodwin v. Kerr, 80 Mo. 276; Adler v. Lange, 21 Mo.App. 516; Keevil v. Donald, 20 Kan. 165; Ames v. Gilmore, 59 Mo. 537. (4) An assignment made for the purpose of effecting a compromise with creditors is fraudulent. Adler v. Lange, 21 Mo.App. 516; Keevil v. Donald, 20 Kan. 165; Work v. Ellis, 50 Barb. 512; Bradley v. Ames, 50 Mo. 387. (5) The court rightly refused to peremptorily instruct the jury to find the issues for the interpleader. This cannot be done where there is any evidence tending to prove the case of the adverse party. Noeninger v. Vogt, 88 Mo. 589. (6) The deposition of Gilbert Elliott did not tend to prove an estoppel in favor of the assignee and against the bank. State v. Rowse, 49 Mo. 586; Heinrichs v. Woods, 7 Mo.App. 236; Tufts v. Thompson, 22 Mo.App. 564. (7) The eleventh, twelfth, fifteenth, and sixteenth instructions asked by the interpleader were properly refused. (8) It was not necessary to connect the assignee with the fraud at all; it was sufficient if he accepted it with knowledge thereof. Bump on Fraud. Con. (3 Ed.) 361; Peet v. Spencer, 90 Mo. 384; Tufts v. Thompson, 22 Mo.App. 564; Heinrichs v. Woods, 7 Mo.App. 236; State ex rel. v. Rowse, 49 Mo. 586. (9) The fraud of the assignor was sufficient. Wait on Fraud. Con. 319; Adler v. Booth, 1 McCrary, 256; Work v. Ellis, 50 Barb. 512; Griffin v. Marquand, 17 N.Y. 28; Ruble v. McDonald, 18 Ia. 493; Whittenham v. Dibble, 66 N.Y. 634. (10) The court properly refused to submit the special interrogatories as asked by interpleader. They were not in conformity with the statute. Turner v. Railroad, 23 Mo.App. 13.
OPINION
The Bank of Tipton, defendant in error, instituted an attachment suit in the Moniteau county circuit court against Cochel & Bechtel, who were merchants engaged in the sale of hardware in the town of Tipton. The writ of attachment was levied upon a stock of goods as belonging to them. On the same day said writ was levied, viz., the third of January, 1885, and a short time before it was issued and levied, an assignment, executed by said Cochel & Bechtel, conveying all their property to one Barrick, as assignee for the benefit of all their creditors, was filed for record. In March following the said Barrick resigned his trust, and James E. Hazell was duly appointed to execute the trust. At the return term of the writ of attachment, said Hazell appeared, and by leave of court filed an interplea claiming in virtue of said assignment the property which had been levied upon.
The plaintiff bank in the attachment suit filed an answer to the interplea denying the right of the assignee and alleging in substance that the assignment was made with the intent to hinder, delay, and defraud the creditors of said Cochel and Bechtel, and that the assignee, Barrick, was a party to said fraud and acting in the interest of said firm and to aid them in their fraudulent purpose; that said assignment was made to him because of his insolvency and willingness to serve them; that their intention was to put the property in the hands of Barrick and secure it from execution and attachment, and use the assignment as a means of coercing their creditors into a compromise, and that said assignment passed no title to the property, either to Barrick or to interpleader, Hazell, as his successor. The replication to this answer denied all frauds, and set up that said bank had full knowledge of the financial condition of said firm and of their intention to make said assignment, and that by reason of its representations made to other creditors of the solvency of said firm and their good faith in making said assignment, the bank was estopped from contesting its validity.
The issue of fraud thus made up was tried before a jury, and a verdict returned in favor of the plaintiff bank in the attachment suit, upon which judgment was rendered and from which Hazell, the interpleader, has appealed to this court, and among other grounds of error, alleges that the court erred in holding that, under the issues as made by the pleadings, the plaintiff bank in the attachment suit had the right to open and close the case, both in the introduction of evidence and in the argument of the cause to the jury. We see no just ground of complaint to this ruling, since the answer was in the nature of confession and avoidance. It admits the assignment, but alleged it to be fraudulent and void, the burden of proving which was on the shoulders of the party averring it. Albert v. Besel, 88 Mo. 150.
Nor do we see any just ground of complaint to the action of the court in allowing witnesses Reavis and McClay to detail a conversation had with Cochel & Bechtel a short time before the assignment was made, in which Cochel gave as a reason for wanting to make an assignment that he could then get a better compromise with his creditors, and that he wanted to make it to get a better settlement with his creditors; nor in allowing a conversation to be detailed, had with Cochel & Bechtel in the presence of Barrick, the assignee, the day after the assignment was made, at a meeting of the creditors, held for the purpose of effecting a compromise. The presence of Barrick, the assignee, at this conversation made what was then said admissible.
It is also objected that the court erred in excluding the deposition of one Elliott, to the effect that, on January 1 and 2, 1885, as the representative of certain creditors, he asked the cashier of the Bank of Tipton for his opinion as to the financial condition of Cochel &...
To continue reading
Request your trial