Little v. Eddy

Decision Date31 March 1851
Citation14 Mo. 160
CourtMissouri Supreme Court
PartiesGEORGE D. LITTLE v. JOS. A. EDDY & LEWIS BEACH.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT & HALL, for Plaintiff. The court erred in giving the instructions asked by the appellees. It leaves the question entirely out of consideration. It takes that essential element entirely away from the jury. They were instructed, that if such and such effects resulted from the sale, no matter what the intent of it, and Little knew they would result, they must find against him, when at the time these consequences are the necessary attendants in all sales, even the most honest. It cannot be true that if Chamberlin so disposed of his effects, that his creditors would be put to unusual trouble and delay in subjecting them by legal process to their debts, and that if Little knew it, the sale was void. It must have been done fraudulently to bring about that result. He had a right to put them entirely beyond the reach of creditors, if he did it honestly. Marle v. Smith, 16 Conn. R. 346; Harrison v. Phillips' Academy, 12 Mass. R. 477; 8 Johns. 451; 1 Baldwin, 357; 18 Wend. 364; Waterbury v. Sturtevant. 2. There is error in the instruction marked 1I, and given by the court of its own motion. It leaves the question of Little's intent and conduct entirely out of the account. It condemns the sale, however honest the purposes and conduct of Little, simply because he must have known that Chamberlin wanted to defraud. The guilt of a participator and aider in the attempted fraud must first be fastened upon Little before his rights under the sale could be affected. To know that Chamberlin so intrusted is not sufficient. Little so knowing, must have meant to help him in it. The court had already so instructed, but virtually overrule that instruction in this. 16 Conn., 346; 9 George, 325; Harrison v. Phillips' Academy, 12 Mass. R. 477. 3. The court further erred in refusing the instruction marked 10 asked by the appellant. The instruction is good law. It has been sometimes given by this court. It was demanded in order to place the facts on which it was based in a proper legal light before the jury. Sibly v. Hood, 3 Mo. R. 290. 4. Both parties to the alleged fraud must concur in the illegal design. The debtor may lawfully sell his property or prefer one creditor to another with the direct intention of defrauding other creditors, but unless the creditor receives the property with the same fraudulent design, the contract is valid. 8 Wheaton. 238; Maguire & Co. v. Thompson, 1 Baldwin, 357. The rule is that the purchaser, knowing of the judgment, must purchase with the view and purpose to defeat the creditor's executions. The question of fraud depends upon the motive. Beal v. Gunsey, 8 Johns. 451; Burr. 474; Waterbury v. Sturtevant, 18 Wend. 353.

TODD & KRUM, for Defendants. 1. The instructions given by the court were correct, and presented the law as fully as the rights of the interpleader, Little, deserved. In this case the fraud of Chamberlin stands found and abided by, and is therefore a fixed fact. The question then in this case, is whether Little was affected by that fraud, the same as if the interpleader of Little was tried by a different jury, with the fraud already found fixed against Chamberlin? All of the instructions asked in behalf of Little, were given, but one, and that one was a mere reiteration of what was already fully contained in the instructions given. For the protection of Little, and vendee, against the charge of privity in the fraud of Chamberlin, his vendor, the instructions were unusually full and particular. 7 Mo. R. 452-3-4; 6 Mo. R. 302, 314. 2. There was no error in the court giving an instruction to the jury after the case had been submitted to them. It was upon a point of law about which the jury desired to be further instructed. In such a case it is always the practice--the right and duty of the court to instruct. The instruction given was also in favor of Little and in the exact and strong words of this court in the case of Chouteau & Valle v. Sherman, 11 Mo. R. 389. 3. The court did err in refusing to grant the motion for a new trial. Admitting that the object of Chamberlin in selling to Little was fraudulent, which the jury found, and to which there is no objection, no one, it is believed, who reads, and much less, no one who was present and listened to the testimony, could reasonably doubt of Little's allowing himself to be made a party to it. The testimony is extensive, conflicting, and full of ambiguity, and marks of a dishonest scheme, and most probably involving both Chamberlin and Little, and his witness, French. The jury, who heard all the testimony and saw the witness, so found it. The judge who tried the case, heard all of the testimony and saw the witness testify, affirmed the finding of the jury. It is impossible for this court to judge so correctly of the proof arising from the testimony actually given in the case, as the judge and jury, who tried the case, this court knowing of the testimony only through the bill of exceptions, which at best never, in such cases contains all and just as given, and not having before them the manner, appearance and deportment of the witnesses, which always have very much to do with the credit and weight due to their words. In such cases, appellate courts do not interfere, and the refusal of this court to interfere in such cases are too numerous and recent to require specific references.

BIRCH, J.

Chamberlin owed Beach & Eddy, about two thousand dollars, Little, about seven hundred dollars, and various other wholesale merchants in St. Louis and the east, other sums--amounting in the whole, to four or five thousand dollars--for goods he had purchased to supply a retail store, which he kept in the city. The last goods he purchased of the defendants in error (plaintiffs below) appears to have been on the 12th of March, 1849, and on the 13th of April following, having then in his store about $2,700 worth, at cost prices, he sold the whole to Little for sixty cents on the dollar's worth, covering thereby, the debt he owed him, his rent and gas bills, and leaving a balance due of about $800, for which he took from Little two negotiable notes, made him a bill of sale, and surrendered to him the possession of the store, &c. Little entered into an arrangement with the former clerk of Chamberlin, to carry on the store, and he was doing so, accordingly, when, after an ineffectual proposi...

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