Leeser v. Boekhoff

• Citation: 33 Mo.App. 223
• Parties: CHARLES LEESER, Respondent, v. THEDA BOEKHOFF et al., Appellants.
• Decision Date: 11 December 1888
• Court: Court of Appeal of Missouri (US)

33 Mo.App. 223

CHARLES LEESER, Respondent, v. THEDA BOEKHOFF et al., Appellants.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. GEORGE W LUBKE, Judge.

REVERSED AND REMANDED.

Christian & Wind, for the appellants.

The sale was fraudulent and void as to creditors because not accompanied by delivery and followed by change of possession. R. S. 1879, sec. 2505. The retention of the old sign and license amounted to a declaration that Mrs. Gruner was still proprietor, thus negativing the idea of delivery and change of possession. Wright v. McCormick, 67 Mo. The clerks of the vendor remaining in possession amounts to the same thing as if she were in possession. The sale took place January 30, but there was no attempt at any delivery or change of possession until the second day thereafter February 1, and that was not a reasonable time in such cases. Seymour v. O'Keefe, 44 Conn. 128; Wright v McCormick, 67 Mo. 427. And if a delivery and change of possession had subsequently been made, it could not have availed. Franklin v. Gummersell, 9 Mo. App., S. C. 11 Mo.App. The facts that Mrs. Gruner continued to sell in the store; that she helped herself to such groceries as she needed; that she or her boy retained one key to the store and occasionally opened it, while the other key was retained by Fischer, her clerk, who opened and closed the door just as had always been done; that Mrs. Gruner's boy, and Fischer and Priesmeyer, her former clerks, continued to work for Leeser while the old Gruner sign remained up; that the same sign or license containing the name of Mrs. Gruner, as proprietor, were hung up behind the bar; that the name C. Gruner remained on the wagons, and that Leeser drank at the bar and paid for the drinks, all rendered the possession at least equivocal and hence fraudulent and void as to creditors. Claflin v. Rosenberg, 42 Mo. 450, and all the foregoing cases cited; Stewart v. Nelson, 79 Mo. 524. The purchase of goods from Boekhoff and Haase Fish Co. by Leeser did not tend to show that there had been actual change of possession of Mrs. Gruner's goods to him, hence the evidence of the bills read in evidence by plaintiff against the objections of defendants, was immaterial and should have been excluded, even if properly identified; moreover, the bill of the Haase Fish Co. was not identified. The appraisements were competent and material evidence in behalf of defendants, and it was error to exclude them. There was no joint trespass. Each creditor acted for himself alone, and each of the three attachments were separate and distinct acts by different parties, having no joint or common interest, and done on different days. There was no evidence to the contrary. Instruction number two, given for plaintiff, ought not to have been given, because it was a comment on the testimony (and also was not the law), as it told them that " the fact alone of the sign upon the second story of the building remaining unchanged would not defeat the plaintiff's recovery." Defendants never claimed or relied upon the fact of the sign being up as the sole and only ground for the attachment. This fact was therefore given undue prominence. Jameson v. Carroll, 5 Mo.App. 598; Miller v. Marx, 20 Mo.App. 369.

Muench & Cline, for the respondent.

It is not questioned by appellants that this sale was made in actual good faith. Their sole contention being that it was constructively fraudulent, it was incumbent upon the court, under all the evidence, to have the question as to whether possession was delivered in a reasonable time, regard being had to the situation of the property, and whether such sale was followed by an actual and continued change of possession, to the jury for its determination. " A few and fitful instances of use by the vendor, or temporary acts of ownership, without the consent of the vendee, will not vitiate the sale." Bump on Fraud. Con. (1 Ed.) 209. No court has ever decided that the sole fact of an unchanged sign rendered a sale, otherwise accompanied by change of possession, fraudulent in law. Such a rule could not obtain under our statutes. All the purchaser is required to do under the statute, according to Claflin v. Rosenberg, 42 Mo. 434, 449, and Knoop v. Nelson Distilling Co., 26 Mo.App. 311, is to show " some open, notorious or visible act, clearly and unequivocally indicative of delivery and possession, such as taking an invoice, putting up a new sign, or any other reasonable means, which would impart notice to a prudent man that a change had taken place." But the evidence of sales by these defendants to plaintiff was admissible upon an additional ground; that of ratification. It is most satisfactorily shown that both parties had immediate notice of the sale; that they sold their goods to the transferee, and took his money with the amplest knowledge that such goods would be made a part of the stock; and that thereafter, on the advice of their attorney, they made a levy upon the very stock thus replenished. Says Bump, in his excellent work upon Fraudulent Conveyances: " If, with notice of the fraud, either actual or constructive, he (the creditor) makes any agreement upon consideration, confirming the transfer, or any statement or agreement to that effect, upon the faith of which the grantee acts as he would not otherwise do, or under such circumstances that his subsequent assertion of his rights as a creditor, if permitted, would operate as a fraud, he will be held to have confirmed the transfer." The court below was clearly right in excluding the written appraisements made in the attachment suits, causes to which respondent was not a party. We can hardly conceive that appellants are serious in contending that no joint trespass was shown. Not merely did the oral evidence show that the whole establishment in question was levied upon under both justice of the peace attachments, and that the stock of goods was only turned over by the constable to the sheriff after appellant Boekhoff had split up her cause of action, transfering one part thereof to the circuit court; but the returns of the several officers, introduced by appellants themselves, render the proof of this allegation of joint trespass absolutely conclusive. With respect to appellants' complaint that respondent's instruction number two apparently comments upon a particular fact in the case, to the exclusion of others, we suggest that this may appear so, but merely at first blush. The one fact that the sign remained unchanged was admitted on all sides. Taking the respondent's view the court below instructed the jury that as a matter of law, the unchanged sign alone was not sufficient to render the sale conclusively void; that the jury should take this fact, however, in connection with all other facts, in solving the problem of sufficient or insufficient change of possession. It being the province of the court to determine the legal effect of evidence (Thompson on Charg. Jury, 71; Harris v. Woody, 9 Mo. 115), as well as to direct the jury that they may consider certain evidence as tending to prove a certain fact (Thompson, supra; Beattie v. Hill, 60 Mo. 72-79), it was not only proper, but necessary, for the court in this case to direct the jury as to the legal effect of the one admitted fact which it had been appellants' effort to make the pivotal one in the case. Calhoun v. Walsh, 7 Mo.App. 589. In all the cases cited by appellants, under this head, as well as those akin thereto, it will be found that the facts " singled out" by the nisi-prius courts were contested facts, hence the error.

OPINION

THOMPSON J.

This action is brought against two defendants for a joint trespass upon and conversion of a stock of goods and other personal property alleged to belong to the plaintiff. The answer, after a general denial, set up in successive paragraphs that the property was levied upon by the defendants under successive writs of attachment issued against their debtor, Caroline Gruner, who was the owner of the goods levied upon; that prior to the levies Mrs. Gruner had made a pretended sale of them to the plaintiff with intent to hinder, delay and defraud the defendants and her other creditors, and that the plaintiff was not in the possession of them when levied on. On motion of the plaintiff, much of the matter contained in the answer was stricken out, to which ruling exceptions were taken; but as the defendants do not assign this ruling for error, we need not allude to it further. The substantial issues at the trial were, whether there had been a bona-fide transfer of the property in controversy by Mrs. Gruner to the plaintiff, prior to the levies, and whether there had been, prior to the levies, an open, notorious and unequivocal change of possession such as satisfies the interpretation placed by our supreme court upon the first clause of Revised Statutes, section 2505. A question of estoppel arises out of the evidence, and also a question as to certain declarations of law given by the trial court, which will be referred to hereafter.

The evidence tended to show that Mrs. Gruner kept a retail grocery in the city of St. Louis; that the plaintiff was her brother; that the plaintiff owned the building in which the grocery was kept by Mrs. Gruner; that he had loaned her money and had indulged her in the payment of rents, until she was indebted to him, exclusive of interest, in the sum of fourteen hundred dollars; that, finding that she was losing money and could not longer carry on the business, it was determined to turn the property over to him in payment of this debt; that, the value of this property being about one thousand dollars, a bill of sale was made by Mrs. Gruner to the plaintiff on the thirtieth of ...