Appeal from Circuit Court, Webster County; G. H. Skinker, Judge.
WOODSON, J.
The plaintiff brought this suit by attachment against the defendant, and the defendants the Shannon County Bank and the Citizens' State Bank were duly garnished therein.
The suit was instituted in the circuit court of. Shannon county, which upon change of venue, was transferred to the circuit court of Webster county, where the trial resulted in favor of the plaintiff against the defendant Martin, and in favor of the defendants Shannon County Bank and the Citizens' State Bank.
In proper time and in due form the plaintiff appealed the cause to the Springfield Court of Appeals, where the judgment of the circuit court was reversed as to the garnishees, one of the judges dissenting, and the cause was duly certified to this court (192 Mo. App. 350, 180 S. W. 1014).
After a careful consideration of the briefs and arguments of counsel in the case, as well as the opinions of the Court of Appeals, we are satisfied that the majority opinion correctly announced the law of the case, and therefore we adopt it as the opinion of this court in the case. It reads as follows:
"This is a suit brought by the appellants against Joseph W. Martin as defendant and the Shannon County Bank and the Citizens' State Bank as garnishees.
"The suit against Martin was to recover the purchase price of cattle sold and delivered to him by the plaintiffs. An attachment was issued, it being charged in the affidavit that Martin had conveyed and assigned his property so as to hinder and delay creditors, and that the debt sued for by plaintiffs was fraudulently contracted on the part of the defendant Martin, and that defendant failed to pay the price and value of 75 head of cattle which were sold and delivered by plaintiffs to defendant, and which by contract he was bound to pay for on delivery.
"The two above-named banks were garnished, and in answer to interrogatories propounded to them denied having any property or effects in their possession or under their control belonging to Martin, and further denying that they owed Martin any sum whatever.
"The plaintiffs, in their replies to the answers of the garnishees, among other grounds set up that the defendant Martin fraudulently contracted and purchased said cattle from the plaintiffs, and purchased the same without any intention of paying therefor, and with the intent and purpose of fraudulently transferring, assigning, and delivering to the garnishees the proceeds from the sale of the cattle, and cheating, wronging, and defrauding the plaintiffs out of said cattle and the proceeds thereof, and of fraudulently transferring and disposing of the proceeds of the same to the garnishees; that said garnishees induced, advised, and counseled the said Martin to issue checks against said banks (the garnishees) for the purchase price of said cattle, with the intent and purpose of enabling the said Martin to secure the possession of said cattle and sell the same, and to pay a certain debt owing by Martin to said garnishees; that said garnishees assisted and abetted the said Martin after the delivery of the cattle had been made to him in selling and disposing of the same, and received from the sale of the cattle the money paid to Martin knowing at the time that they received said money corning from the sale of the cattle, that Martin had purchased them from the plaintiffs, and that he had issued checks on said banks to pay the purchase price of the cattle; and that said garnishees assisted Martin in fraudulently conveying and assigning and disposing of the cattle, and received the money arising from such sale and converted it to their own use with full knowledge, and participated in the fraud practiced on these plaintiffs.
"The court found judgment in favor of the plaintiffs against Martin, and sustained the attachment on the grounds hereinbefore set out. After hearing evidence introduced by the plaintiffs tending to prove the allegations in their replies, the court directed the jury to find for the garnishees, and it is from the judgment rendered on the verdict that the plaintiffs appeal.
"The question in this case narrows down to this: Do the facts which are developed under the allegations in the replies make a case where" garnishment is a remedy for the alleged fraud practiced on plaintiffs by the agent of the garnishees?
"The facts developed in the testimony of the plaintiffs are substantially as follows: Defendant
Martin owed these two banks, the garnishees herein, something like $3,000. To secure this they had taken a chattel mortgage on some cattle which Martin was shipping to St. Louis. For some reason these cattle were quarantined at St. James, Mo., and while there Martin sold them to a person living at or near St. James without giving him any notice whatever of the chattel mortgage on the herd held by the garnishees herein. The garnishees sent one Sizemore, an attorney, to St. James, and while there Sizemore ascertained that Martin had disposed of the herd to the St. James party, and that the latter had bought them without any notice that a chattel mortgage was in existence. For some reason not disclosed in this record Sizemore did not institute proceedings to recover the herd under the mortgage, but it is shown that he remarked to the purchaser that he could get his (the banks') money out of Martin in another way. Martin and Sizemore were in St. James together, both (according to the evidence) drinking together a good deal of the time. Martin says he told Sizemore that he knew of some cattle over in Dent county that he could buy, and that if he bad the money to buy them there would be a profit in them which he would turnover to Sizemore for the banks which he represented; that is, that Martin told him he would turn over the profit that could be made on those cattle. Martin said he told Sizemore he did not have the money with which to buy them, and that Sizemore told him to go ahead and buy those cattle, and to issue his checks for the Purchase price against the two banks, and that he would see that these purchase price checks were paid out of the proceeds that would be derived from a sale of the cattle. Acting on this, Martin bought the cattle in Dent county, and gave his checks to the plaintiffs herein for the amount for which this suit was brought.
"The evidence shows that when Martin bought the cattle from the plaintiffs he represented that he was going to ship them to Pike county, in this state, and he in fact had them billed by the railroad company to a point in that county.
"It is shown that Sizemore, the agent and at. torney of the garnished banks, met the defendant at a station on the railroad several stations below the station from which the cattle were shipped, and that the cattle were then rebilled to St. Louis, Martin and Sizemore going with them.
"Sizemore stayed with the defendant Martin until the cattle were sold and Martin had received the proceeds. Sizemore got Martin to turn over to him the drafts which the commission merchants had paid Martin for the cattle, and then left him and took the drafts back to the garnishees, and they applied this money on their former indebtedness against Martin.
"The record shows the following examination of the defendant by the court: `Q. Why was it you did not use the proceeds to send to the Shannon County Bank to meet the checks you had drawn for the cattle? A. For the simple reason that I got drunk or I would have done it. Q. Who got the money? A. Sizemore got the money.'
"He was asked how he expected to pay for plaintiffs' cattle, and said he expected to pay the checks, given at the time of the purchase, out of the proceeds derived from the sale of the cattle, and that he did not intend the proceeds from the sale of these cattle to settle up past indebtedness to the two banks, the garnishee. And from the evidence it is clear that Sizemore knew of this intention on the part of Martin, and that he had aided and assisted Martin in purchasing the cattle and in getting possession of them as was done.
"From the briefs and from the oral arguments it appears that the trial court directed a verdict for the garnishees on the ground that garnishment was not a remedy open in this case to these plaintiffs. In this we think the court erred. It is well settled in this state that the issuance of checks on a bank in payment of the purchase price of property when the drawer has no funds in the bank is a fraud (Matthews v. Eby, 168 Mo. App. 134, 151 S. W. 470), and is a fraudulent act, within the meaning of the attachment law (Alexander v. Wade, 107 Mo. App. 321, 80, S. W. 917).
"It is also open to a plaintiff to ratify a sale and sue for the purchase price, and then attach on the ground of a fraud, and by such ratification he does not waive the fraud of the defendant in obtaining the thing sold. Kansas City Stained Glass Works & Sign Co. v. Robertson, 73 Mo. App. 154; Mapes v. Burns, 72 Mo. App. 411.
"A creditor having a bona fide indebtedness is not permitted under the Missouri law to enter into a scheme with his debtor to hinder and delay other creditors in the just collection of their indebtedness. In other...
