Hill v. Taylor

• Decision Date: 04 December 1894
• Citation: 28 S.W. 599,125 Mo. 331
• Parties: Hill, Appellant, v. Taylor; Hoefer, Interpleader
• Court: Missouri Supreme Court

28 S.W. 599

125 Mo. 331

Hill, Appellant, v. Taylor; Hoefer, Interpleader

Supreme Court of Missouri, Second Division

December 4, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

William Aull, E. F. Keyton and Boyd & Murrell, for appellant.

(1) The court erred in refusing instruction number 5 asked by appellant. Coburn v. Pickering, 3 N.H. 424; Parker v. Patte, 4 N.H. 178; Connelly v Walker, 45 Pa. St. 449; Reed v. Pelliteer, 28 Mo. 177; State to use v. Tasker, 31 Mo. 448; Bullene v. Barrett, 87 Mo. 189; Passamore v Eldridge, 12 S. & R. (Pa.) 198; Mfg. Co. v Steele, 36 Mo.App. 496; Holmes v. Braidwood, 82 Mo. 610; McVeagh v. Baxter, 82 Mo. 518; Shelley v. Boothe, 73 Mo. 74; Mayberry v. Jackson, 40 Mo.App. 136; Bank v. Lime Co., 43 Mo.App. 561; Patterson v. Letton, 56 Mo.App. 325. (2) The court erred in refusing instruction number 6, asked by appellant. See authorities, supra. The bill of sale intended as a security for the money advanced and eight per cent. interest, and in addition thereto a bonus of $ 500, was absolutely void. Session Acts, 1891, pp. 170 and 171, secs. 1 and 2; American Rubber Co. v. Wilson, 55 Mo.App. 656; Patterson v. Letton, 56 Mo.App. 325; Drennon v. Dalincourt, 56 Mo.App. 128. (3) The court erred in granting instruction number 3 for respondent. Session Acts, 1891, pp. 170 and 171, secs. 2 and 3. American Rubber Co. v. Wilson, 55 Mo.App. 656; Drennon v. Dalincourt, 56 Mo.App. 128. (4) The court erred in granting instructions numbers 1 and 2, asked by respondent. It is not the law. 53 Mo.App. 23, and 56 Mo.App. 325. Appellant should have been permitted to submit the question of age and experience, together with the facts connected with the giving of the bill of sale to interpleader to the jury. It was material upon the question as to how Taylor and the interpleader prevailed upon him to make the bill of sale, and should not have been excluded. (5) The court erred in excluding evidence as to the indebtedness of Taylor. Meyberg v. Jacobs, 40 Mo.App. 135. (6) The evidence shows conclusively that, though an absolute bill of sale was taken, there was a secret trust and the bill of sale was intended as a security to secure usurious interest (interest and $ 500 bonus). The bill of sale and intended security were void. See authorities supra. (6) The verdict of the jury and the judgment were irregular and void. Wilson Distillery Co. v. Hubbard, 53 Mo.App. 23.

Wallace & Chiles for respondent.

(1) There was no error in the court below in refusing to give the instructions numbers 2, 3, 4, 5, 6, 7, 8 and 9, asked by plaintiff below, appellant here, nor any one of them. They and neither of them are applicable to the case at bar. The cases of Reed v. Pelliteer, 28 Mo. 173; State to use v. Tasker, 31 Mo. 44; Mfg. Co. v. State, 36 Mo.App. 496; Connelly v. Walker, 45 Pa. St. 449; Bank v. Lime Co., 43 Mo.App. 561; Patterson v. Letton, 56 Mo.App. 325, as well as Passamore v. Eldridge, 12 S. & R. (Pa.) 189, as well as the cases in the third and fourth N. H., and other cases cited by appellant in the same line, are cases where there were absolute bills of sale or conveyances of personal property by debtors to their creditors, with secret trusts accompanying them, by which the property, or part of it, or some interest or use of the same, was to go to the failing debtors. There is no "secret trust" in the case at bar. (2) The court below did not err in giving the instructions numbers 1, 2 and 3, nor either of them, on the part of interpleader. They are correct enunciations of the law of this case. The objections of appellant to said instruction number 3 are fully answered in the point 1 in this brief, as well as the inapplicability of his authorities. As to what constitutes a fraudulent conveyance, see Hausman v. Hope (including statement of case), 20 Mo.App. 193, at 197. "Mere suspicion is not proof. However honest may be the conviction of the existence of fraud and irregularity in the mind of a creditor, in such cases, it will not supply "the law's demand" "for tangible evidence." Ibid. Hoefer had no knowledge that Taylor was in debt. Shelly v. Boothe, 73 Mo. 74; Holmes v. Braidwood, 82 Mo. 610; Greely v. Reading, 74 Mo. 309; Nash v. Norment, 5 Mo.App. 545; Petring v. Christler, 90 Mo. 649. Instruction 3, approved in last case on page 656, is to same effect with interpleader's first instruction in case at bar. See, also, Dobyns v. Meyer, 95 Mo. 132; McIntosh v. Smily, 32 Mo.App. 125; S. C., 107 Mo. 379; Markey v. Umstattd, 53 Mo.App. 20; Van Raalte v. Harrington, 101 Mo. 602. (3) On the evidence, the court might well have instructed the jury to find for the interpleader. Trimble v. Mercantile Co., supra; Robinson v. Dryden, supra. (4) J. M. Taylor never had any legal possession of the horses. Claflin v. Rosenberg, 42 Mo. 439; State to use v. Donnelly, 9 Mo.App. at 527; Knoop v. Distilling Co., 26 Mo.App. at 311. (5) Plaintiff manifestly mistook his remedy, if any he had. If he had any remedy at all, it was by ordinary judgment against Taylor and the garnishment of Hoefer on execution. Hausman v. Hope, 20 Mo. App., supra.

OPINION

Burgess, J.

Plaintiff instituted this suit in the circuit court of Lafayette county, Missouri, against the defendant Taylor, and caused to be attached as his property something over two hundred and eighty-eight head of western horses. Charles Hoefer interpleaded, claiming the horses as his property. The venue of the cause was subsequently changed to Saline county, where, upon trial had to a jury, there was a verdict and judgment for the interpleader for the possession of the horses, and plaintiff appealed.

W. S. Tough, manager of the horse and mule department of the Kansas City stock yards, authorized Taylor by wire at Idaho Falls, Idaho, to draw on him at the rate of $ 10 per head on the horses, which Taylor bought from one Hockman, the balance to be paid when realized from sale of the stock, Taylor to ship the horses to Kansas City stock yards, and to draw on Tough for the money. Taylor bought the horses at $ 3,000, and took from Hockman a receipt, which reads as follows:

"September 11, 1891.

"Received of James M. Taylor, agent, $ 10 on my band of two hundred and sixty-five head of horses and mares and one yearling jack and outfit; balance as agreed upon to be paid as soon as counted out.

"Brick Hockman."

Taylor then drew on Tough for $ 2,600, in part payment of the purchase money for the horses, cashed the draft and took from the amount realized thereupon the $ 10 paid to bind the contract, paid Hockman $ 1,800 and some time after the stock had arrived at Kansas City executed to him his own note for the sum of $ 1,000, with John Reed and J. H. Dooley as sureties to secure the payment of the balance of the purchase price. Tough never at any time authorized Taylor to buy the stock as his agent. Hockman delivered the stock to Taylor, and then he and Hollingshead took the horses to Idaho Falls, whence they were shipped to Kansas City. There were twelve car loads of the stock; ten car loads were shipped in the name of Hockman, and two in the name of Hollingshead, in order to get a pass for said Hollingshead east over the railroad.

The bills of lading were issued to Hockman, the draft on Tough for $ 2,600 was attached thereto and sent for collection by Anderson Brothers, by whom it had been cashed, to the Utah National Bank at Ogden, and by it sent to the Merchants' National Bank, Kansas City, Missouri, for collection. The horses were consigned to Anderson Brothers.

When the stock reached Kansas City stock yards, Tough refused to honor or pay the draft, but held the horses for the freight bill due the railroad, amounting to $ 2,180.92; for a feed bill due the yards for $ 353, and until the draft for $ 2,600 should be paid. The evidence was conflicting as to the ownership of the stock, whether it was Taylor's, or whether the title was to remain in Hockman until he was fully paid. Hockman claimed the stock as his until the balance of the purchase money, $ 1,000, due him was paid, and refused to allow them to be removed or sold until this was done.

Hoefer, learning through a friend the condition the stock were in at Kansas City, met with Taylor at Higginsville, his place of residence, when Taylor assured him that they could be purchased cheap, and that, if he would buy them, he, Taylor, would agree to attend to and sell them for him. Hoefer wanted to be indemnified against any loss that he might incur by reason of the investment, and, in order to induce him to buy the stock, Taylor and his wife executed to him their note for $ 2,750, and secured its payment by deed of trust on a house and lot of Mrs. Taylor's, in the town of Higginsville, and a couple of horses, all valued at $ 1,700. Taylor was to handle the horses for Hoefer for any ultimate profit there might be on the sale of them, after the amounts Hoefer had invested in them should be refunded to him, but was not to be liable for any expenses.

There was indorsed on the note, executed by Jane L. and J. M. Taylor, this memorandum: "This note is given to secure against loss on horses bought at Kansas City." The note and deed of trust were executed October 26, 1891.

Hoefer went to Kansas City on the day following and, as stated in his evidence, he purchased the stock from Hockman for the sum of $ 5,000, and took bill of sale therefor, paying on said purchase $ 5,133.92 as follows: The draft for $ 2,600 freight bill, $ 2,180.92, and feed bill, $ 353. Hockman in his testimony denied selling the stock to Hoefer; said that it did not then belong to him, and that when he signed the bill of sale, he did not know what it was, and made it out to help Taylor. Taylor was a party to, or agreed to, the sale...