Lew Weinrich & Co. v. Porter

• Decision Date: 31 January 1871
• Citation: 47 Mo. 293
• Parties: LEW WEINRICH & CO., Defendants in Error, v. W. H. PORTER, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 293

LEW WEINRICH & CO., Defendants in Error,

v.W. H. PORTER, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Phillips & Vest, for plaintiff in error.

The testimony of Wangelin, accompanied by the instruction of the court, at the time was properly admitted. After a vendor has parted with his property, of course he can not affect the title by any subsequent acts or declarations (35 Mo. 202); but when a fraudulent conspiracy is charged, and when the court explains at the time to the jury the effect of such evidence, it is no ground for a reversal. (3 Greenl. Ev. 89, 90; 29 Mo. 51.)

F. P. Wright and Draffin, for defendants in error.

The declarations and statements of Norton and Townsend, made after the sale and transfer of the goods to Lew Weinrich & Co., were clearly inadmissible. (Stewart, to use of Graham, v. Thomas, Adm'r, 35 Mo. 207; Gutzweiler's Adm'r v. Lackman et al., 39 Mo. 91; Lessee of Packer v. Gonsalus, 1 Serg. & R. 526; 1 Greenl. Ev. 180.)

WAGNER, Judge, delivered the opinion of the court.

Norton & Townsend, a mercantile firm doing business in Sedalia, were in embarrassed and failing circumstances, and owed the plaintiffs in this action the sum of $2,000, Greenfield, Sale & Co. the sum of $272, Jonas Mayberg & Co. the sum of $663, besides other indebtedness. To secure plaintiffs' indebtedness, they executed to them a writing transferring to them their entire stock of goods, amounting to $3,000 and upwards, plaintiffs assuming to pay to Turner, one of Norton & Townsend's creditors, the sum of $485; and the balance, it is alleged, was put in to defray the expenses of selling and winding up the business. The plaintiffs took possession of the goods and employed Norton to sell them. Shortly after the sale, Greenfield, Sale & Co. and Jonas Mayberg & Co. instituted their suits of attachment against Norton & Townsend, and caused the sheriff to attach and take possession of part of the goods sold, on the ground that the sale to plaintiffs was fraudulent and void. Plaintiffs brought this suit for the specific recovery of the goods, against the sheriff, who is the defendant here. At the trial in the Circuit Court the jury returned a verdict for the defendant, upon which judgment was rendered. This judgment was reversed in the District Court, and the defendant now prosecutes his writ of error. There is no point made in reference to the instructions given for the plaintiffs, and they were not excepted to in the court below.

During the trial the defendant introduced as a witness a member of the firm of Jonas Mayberg & Co., who testified that after the sale and transfer of the goods to plaintiffs he had repeated conversations with Norton & Townsend, and they told him to attach the goods and make his debt; that he could do it easily; that the sale was a fraud, a mere sham, and intended to keep Greenfield, Sale & Co. out of their money. This evidence was objected to by the plaintiffs, but the...