Maryville Mercantile Co. v. Hedgecock

• Decision Date: 01 May 1916
• Docket Number: No. 11930.,11930.
• Parties: MARYVILLE MERCANTILE CO. v. HEDGECOCK (COBLE, Interpleader.)
• Court: Missouri Court of Appeals

186 S.W. 55

MARYVILLE MERCANTILE CO. v. HEDGECOCK (COBLE, Interpleader.)

No. 11930.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Appeal from Circuit Court, Nodaway County; W. H. Crawford, Special Judge.

"Not to be officially published."

Action by the Maryville Mercantile Company against J. S. Hedgecock, in which George W. Coble filed an interplea claiming the attached property. Judgment for plaintiff on the interplea and answer thereto, and interpleader appeals. Affirmed.

Wright & Ford, of Maryville, for appellant. Cook, Cummins & Dawson, of Maryville, for respondent.

TRIMBLE, J.

The Maryville Mercantile Company, a corporation owning a stock of goods in Maryville worth about $13,000 or $14,000, sold it to J. S. Hedgecock, taking some Nebraska land in part payment, and, for that part of the purchase price remaining unpaid, took his seven promissory notes aggregating $2,500, and delivered possession of the stock to him. Hedgecock, who lived in Nebraska, placed the store in charge of a man from that state by the name of Bessey, as manager, leaving the same clerking force in the store as was there when the sale was made. The sale was consumated on the 5th of February, 1912, and Hedgecock, through his manager, conducted the store until the 20th of that month, when the Maryville Mercantile Company, becoming satisfied that Hedgecock was attempting to defraud his creditors and especially the company from whom he had bought the stock brought suit on the seven notes, and also for $102.50 rent on the building and $64 on account of insurance, and attached the stock. Hedgecock gave a delivery bond, retained the property, and immediately shipped it out of the state. Four months later, Coble, appellant herein, filed an interplea claiming that the property belonged to him at the time of the attachment and not to Hedgecock. Plaintiff's answer to the interplea was a general denial coupled with a charge that, if interpleader had any interest in the property, the same was not acquired in good faith and for value, but in an attempted fraudulent transfer of the property by Hedgecock for the purpose of defrauding his creditors and particularly the plaintiff, and that interpleader participated in said attempted fraudulent transfer. The issue raised by the interplea and the answer thereto was tried, resulting in a verdict that at the time of the levy of the writ the property seized was the property of J. S. Hedgecock, and that the interpleader had not interest therein. Judgment was rendered upon the verdict, and the interpleader has brought this appeal.

The claim that the judgment should be reversed because plaintiff's answer to the interplea failed to allege that plaintiff was a creditor of Hedgecock connot be upheld. The answer pleaded the relation of debtor and creditor existing between Hedgecock and plaintiff and says that the purpose of the alleged transfer to interpleader was to enable Hedgecock to defraud his creditors, particularly the plaintiff. No attack was made on the answer either by demurrer or motion. No objection thereto of any kind seems to have been made in the trial court. The contention that it is insufficient is raised for the first time in appellant's brief. A pleading which states a cause of action, although defective in some particulars, is held good after verdict. Hurst v. City of Ash Grove, 96 Mo. 168, 9 S. W. 631; Hitchings v. Maryville, 134 Mo. App. 712, 115 S. W. 473.

Besides, elsewhere in interpleader's brief it is stated that "the answer to interpleader's petition alleged that the Maryville Mercantile Company was a creditor of the defendant Hedgecock," which is an admission against the validity of the claim now being considered.

It is urged that the court erred in admitting in evidence the notes given by Hedgecock for the unpaid purchase price of the stock. They were introduced by plaintiff as a part of its proof that at the time the attachment was issued the relation of debtor and creditor existed between Hedgecock and plaintiff. The ground of the objection to the notes was that they were payable to J. W. Herndon and T. W. Costello, and not to plaintiff. These men were two of the officers of the company, and the proof is that the notes, pursuant to the contract of sale, were taken in their names for convenience in handling and disposition. There was no doubt that the stock of goods belonged to plaintiff when it was sold to Hedgecock; that these were the notes taken as a part of the purchase price; that the debt represented by them was due to, and still was the property of, the plaintiff. But, aside from this, the debt for rent was sufficient to establish the relation of debtor and creditor between Hedgecock and plaintiff so as to entitle the latter to bring the original suit and to litigate with interpleader the question of the right to the property, which is the point at issue in a suit on the interplea. Brownwell Car Co. v. Barnard, 139 Mo. 142, 40 S. W. 762.

The final point made by interpleader, and the one which he says is his "most serious contention," is that the trial court should have directed a verdict for him.

Appellant interpleader claims that on February 10, 1912, five days after Hedgecock bought the stock, the latter gave a bill of sale thereof to one Patterson, and that he (interpleader) bought the stock from him in good faith and without notice of any fraud. Appellant's counsel admit in their brief that the evidence tended to show that the sale from Hedgecock to Patterson was a sham, and that if Patterson were the interpleader the jury might be warranted in the finding they made, but that there is no evidence to connect Coble with any fraud. We think there were so many suspicious circumstances surrounding the claimed transfer to Patterson and from Patterson to Coble that it was a question for the jury to say whether Coble was a participant in the fraud or not. The suspicious circumstances were such as to show that all three of the men. Hedgecock, Patterson, and Coble, participated in the scheme to get the stock beyond the reach of the plaintiff's claims; and the explanations given in behalf of interpleader to account for such circumstances in a manner consistent with innocence, even where plausible, depend for their success upon whether the jury believed the statements made. This would prevent the trial court...