Henschen v. O'Bannon

• Decision Date: 31 March 1874
• Citation: 56 Mo. 289
• Parties: FREDERICK W. HENSCHEN, et al., Respondents, v. JOHN T. O'BANNON, Appellant.
• Court: Missouri Supreme Court

56 Mo. 289

FREDERICK W. HENSCHEN, et al., Respondents,

v.JOHN T. O'BANNON, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

C. M. Napton, for Appellant.

Lubke & Player, for Respondents.WAGNER, Judge, delivered the opinion of the court.

The plaintiffs, who were millers and flour merchants, brought their action to recover of defendant the price of twenty-five barrels of flour, which they sold to him on the 28th day of December, 1867. Defendant by an amended answer pleaded a discharge in bankruptcy, to which plaintiffs replied that the debt sued for was fraudulently contracted by defendant, and was therefore excepted from the discharge pleaded in the answer. Upon this issue there was a trial before a jury and a verdict was rendered for the plaintiffs, and the cause has been brought here for review by appeal.

There was evidence tending to show that on the 28th day of December, 1867, defendant called on plaintiffs at their store and wanted to buy the four; that defendant represented to plaintiffs that he had money in bank, and that it was then late in the afternoon of Saturday, and that he would give them a check for the bill on Monday morning following; that he wanted the flour to fill an order, and requested plaintiffs to send the same to a steamboat lying at the wharf; that plaintiffs, believing defendant's statement about his having money in bank to pay with, shipped the flour and sent defendant the dray ticket, and on Monday sent for the money, but defendant was not to be found, and they never received any part of the money for the flour. It appeared also that when these representations were made, defendant had no money in bank, or anywhere else; that he shipped the flour, and drew against the shipment, and received the money and used it for his private purposes. On the 18th of January, 1868, defendant filed a voluntary petition in bankruptcy, in which he was afterwards discharged.

Three instructions were given at the trial, one for the plaintiffs, and two for the defendant; for the plaintiffs the court instructed the jury that if they believed from the evidence that defendant, at the time when he purchased the flour in controversy from plaintiffs, represented to them that he had money in bank, and that thereupon the plaintiffs, upon the faith of such statements, sold and delivered the flour, and that the representation by defendant, that he had money in the bank, was a material inducement to plaintiffs to make such sale, and was false and known to be false by the defendant, then they should find that the debt sued for was created by the fraud of the defendant, and they should find for the plaintiffs.

For the defendant the court instructed the jury, first, that fraud was not...