Massey-Harris Co. v. Rich

• Decision Date: 05 December 1938
• Parties: THE MASSEY-HARRIS COMPANY, APPELLANT, v. E. L. RICH, OLIVER FARM EQUIPMENT SALES COMPANY, GARNISHEE, H. D. ARMSTRONG, INTERVENOR, RESPONDENTS
• Court: Kansas Court of Appeals

122 S.W.2d 858

233 Mo.App. 509

THE MASSEY-HARRIS COMPANY, APPELLANT, v. E. L. RICH, OLIVER FARM EQUIPMENT SALES COMPANY, GARNISHEE, H. D. ARMSTRONG, INTERVENOR, RESPONDENTS

Court of Appeals of Missouri, Kansas City

December 5, 1938

Appeal from Jackson Circuit Court.--Hon. Ben Terte, Judge.

AFFIRMED.

Judgment affirmed.

Samuel Feller for appellant.

(1) If at, or before, the assignment introduced in evidence was made there was an agreement or understanding between the defendant Rich and his attorney Armstrong, the intervenor, to the effect, that Rich should receive a part of the money owing by the garnishee in the event the intervenor should be successful in obtaining the same and that such agreement was made for the purpose of hindering, delaying or defrauding the creditors of Rich, and especially the plaintiff in this case then such assignment was void as to this plaintiff. Monument Co. v. Jordan, 295 S.W. 763, 768; Rivercomb v. McCully, 74 Mo.App. 575; Schudder v. Payton, 65 Mo.App. 314; Emlet v. Gillis, 63 S.W.2d 12; State ex rel. Solomon v. Mason, 20 S.W 629, 102 Mo. 374; Bank v. Fry, 115 S.W. 439, 216 Mo 24; Walther v. Null, 134 S.W. 993, 233 Mo. 104. (2) The defendant Rich was insolvent at the time he made the assignment to intervenor Armstrong, and the same was made to defraud his creditors and in part payment of attorney's services thereafter to be rendered by Armstrong to Rich. Such assignment is void as to plaintiff who was then a judgment creditor of defendant. Armstrong at the time knew of such insolvency, and was the attorney for defendant. Shellabarger v. Wottin, 47 Kans. 451; Marshall v. Van De Mark, 57 Kans. 304, 308; Bank v. Pirotte, 107 Kans. 573; Bank v. Craco, 46 Kans. 629; Bank v. Lillebridge, 262 S.W. 433, 436; Walther v. Null, 134 S.W. 993; Barrett v. Foote, 187 S.W. 67; Massey v. McCoy, 79 Mo.App. 169. (3) The instructions given on behalf of the plaintiff and the one given on behalf of the interpleader submitted the theories of each claimant to the funds in the hands of the garnishee. In such a case the instructions on the part of the plaintiff need not include the theory of the intervenor's case. State v. Hope, 14 S.W. 985, 989, 102 Mo. 410; Ash v. Nat. Life & A. Co., 40 S.W.2d 505, 507; Kurth v. Morgan, 277 S.W. 50, 53; Morrow v. Wabash Ry. Co., 276 S.W. 1030, 1032; Lowry v. Fidelity-Phoenix F. Ins. Co., 272 S.W. 79, 81. (4) The court having granted a new trial "because of errors in plaintiff's instructions," there is, therefore, but one question before this court, viz.: Did the trial court commit error in giving said instructions? If the instructions declared correct principles of law applicable to the issues in this case, then the court should not have granted a new trial and that order should be reversed. Where the trial court specifies particular grounds on which a new trial was granted the presumption is that all grounds not so specified were overruled. Gould v. St. John, 106 S.W. 23, 26; Castorina v. Herrmann, 104 S.W.2d 297; Howard v. Ham, 69 S.W.2d 725; Tabler v. Perry, 85 S.W.2d 471.

William S. Gabriel and Russell W. Gabriel for respondents.

(1) Plaintiff's Instruction 1A was erroneous and prejudicial to intervenor and justified the ruling of the trial court sustaining intervenor's motion for new trial. Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 P. 89; Hasie v. Conner, 53 Kan. 713, 37 P. 128; Richolson v. Freeman, 56 Kan. 463, 43 P. 772; Hartman v. Hosmer, 65 Kan. 595, 70 P. 598; Culp v. Mulvane, 66 Kan. 143, 71 P. 273; Davis v. McCarthy, 52 Kan. 116; Vickers v. Buck Stove Range Co., 60 Kan. 598, 57 P. 517; Dodge City v. McKivven, 146 Kan. 341. (2) Plaintiff's Instructions 2 and 3 were erroneous and prejudicial to the intervenor and justified the court below in sustaining intervenor's motion for new trial "because of error in plaintiff's instructions." Gate City National Bank v. Green et al., 102 Kan. 202, 170 P. 391; Gate City National Bank v. Green et al., 105 Kan. 303, 182 P. 404; Carter v. McPherson, 104 Kan. 59; Seals v. Snow et al., 126 Kan. 246, 267 P. 1105; Quinn v. Union National Bank, 32 F.2d 762; Reed v. Mellar, 5 Mo.App. 567. (3) Appellate court reviewing order granting new trial may consider grounds in motion for new trial not stated in order. Little v. St. Louis & San Francisco Railroad, 297 S.W. 98; City of Kennett v. Kratz, 202 S.W. 558; Tabler v. Perry, 85 S.W.2d 471; Yurons v. Wells, 17 S.W.2d 518; Smith v. Kansas City Public Service Co., 43 S.W.2d 548; Foley v. Union House Furniture Co., 60 S.W.2d 725.

SHAIN, P. J. Bland, J., concurs; Kemp, J., not sitting.

OPINION

SHAIN, P. J.

In this action, filed April 12, 1932, and trial and judgment on April 22, 1936, we are called upon to review proceedings had in the Circuit Court of Jackson County, Missouri, wherein the Massey-Harris Company sued E. L. Rich on a judgment obtained by it against Rich, in Scott County, Kansas. In this action the Oliver Farm Equipment Sales Company was garnisheed, and R. D. Armstrong, an attorney-at-law, is intervenor.

To the end of an intelligent understanding of the questions before us for review, we set forth in chronological order the facts and circumstances out of which the issues involved grew:

It appears that prior to September, 1930, the Oliver Farm Sales Equipment Company had filed suit against E. L. Rich in the District Court of Scott County, Kansas, and in September, 1930, obtained judgment against said Rich in the sum of $ 810.25:

It appears that said Rich, at the commencement of said suit, employed R. D. Armstrong for the terms that said litigation should last, and that said contract of employment was for reasonable compensation for services and expenditures on the part of Armstrong;

It appears further that at the request of said Rich, Armstrong employed Fred J. Evans to assist in the litigation;

An appeal was taken from the judgment aforesaid and Rich gave a bond to stay execution and thereafter and on September 8, 1930, the Oliver Farm Equipment Company, plaintiff in said cause, gave a restitution bond under the provisions of the law of Kansas, and amount of judgment was paid into said company's hands;

In November, 1931, the Supreme Court of Kansas reversed and remanded cause for trial;

It appears that prior to September, 1931, the Massey-Harris Company, plaintiff herein, had brought suit against E. L. Rich and in September, 1931, had judgment in the District Court of Scott County, Kansas, against said Rich, in the sum of $ 1632.33;

It is upon this judgment that this suit was brought on April 12, 1932;

On September 22, 1932, a writ of attachment, issued out of the Circuit Court of Jackson County, Missouri, in the aforesaid suit, was placed in the hands of the Sheriff of Jackson County, Missouri, and the Oliver Farm Equipment Company was summoned as garnishee, same made returnable to November term, 1932, of said circuit court;

It is shown that at said November term of said court the Massey-Harris Company, plaintiff herein, filed interrogatories;

Thereafter the record as to the aforesaid suit and garnishment is silent until August 7, 1935.

As to the suit of the Oliver Farm Equipment Company against Rich, it is shown that same was thereafter tried in aforesaid court in Kansas, resulting in a hung jury. It is shown that another trial was had resulting in a verdict for Rich. It is shown that an appeal thereafter was taken by the Oliver Farm Equipment Company, and thereafter judgment in favor of Rich was affirmed by the Supreme Court of Kansas. It appears in evidence that the termination of the Oliver Farm Equipment Company case was in the spring of 1935.

It appears that during the progress of the trial in the Oliver Farm Equipment Company case Mr. Rich made an assignment of $ 810.25, in the hands of Oliver Farm Equipment Company as aforesaid, to Mr. Armstrong.

As much of the controversy herein revolves around the aforesaid assignment, we set forth the same in full as follows:

"Whereas, on the 13th day of September, 1930, the defendant, above named, caused to be paid to the clerk of said court, the sum of $ 810.28, in compliance with the order of the court herein, the same being the full amount of the judgment, interest and cost of the plaintiff in said action on that date, and on the same day the plaintiff made and filed in said action its bond by the terms of which plaintiff undertook and agreed to repay said amount to the clerk of said court in the event said judgment should be reversed, vacated or set aside, and thereafter the Supreme Court of the State of Kansas reversed and vacated said judgment and by reason thereof said sum is now owing and due to the defendant, E. L. Rich.

"Now therefore, in consideration of the sum of $ 1.00 and other valuable considerations to me in hand paid, receipt of which is hereby acknowledged, I, E. L. Rich, do hereby sell, assign, transfer, set over and convey to R. D. Armstrong of Scott City, Kansas, the aforesaid sum of $ 810.28 and all of my right, title, and interest therein and thereto and direct that said sum be paid to the said R. D. Armstrong or his assigns.

"Dated February 3, 1932.

"E. L. Rich."

As showing the consideration claimed for said assignment, we set forth in full the letter from Armstrong to Rich, under date of February 1, 1932, as follows:

"February 1, 1932.

"Mr E. L. Rich,

"1461 Joliet,

"Aurora, Colorado.

"Dear Mr. Rich:

"I fully appreciate your financial difficulties but I feel since the Oliver Farm Equipment case was reversed by the Supreme Court that it is now possible for you to make an adjustment of your affairs with me, therefore, I have concluded to submit this proposition to you.

"You assign to me your rights to the item of $ 810.28 which we paid into court...