McDonald v. Gaunt

• Decision Date: 01 July 1883
• Parties: R. L. MCDONALD, et al., v. SAMUEL W. GAUNT
• Court: Kansas Supreme Court

2 P. 871

30 Kan. 693

R. L. MCDONALD, et al., v. SAMUEL W. GAUNT

Supreme Court of Kansas

July 1, 1883

Error from Rawlins District Court.

ACTION by Gaunt against certain officers to recover the possession of a certain stock of goods. Trial at the April Term, 1883 and judgment for the plaintiff. The defendants bring the case to this court. The opinion states the facts.

Judgment reversed and cause remanded.

C Angevine, for plaintiffs in error.

Lewis G. Parker, and Louis K. Pratt, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action of replevin, brought by the defendant in error against certain officers in Rawlins county holding orders of attachment, which they had levied upon a stock of goods at the instance of the plaintiffs in error, claimed by the latter to belong to one G. W. Gaunt. The plaintiffs in error, as attaching creditors, were substituted as defendants in the action.

It was shown in the case that on and prior to the 16th day of February, 1882, the said G. W. Gaunt kept a store of general merchandise at Atwood, in said county; that on the said 16th day of February he had on hand goods to the value of about $ 2,350; that on said date the defendant in error, the brother of G. W. Gaunt, claimed to have purchased all of the stock of goods for the sum of $ 2,350, $ 750 of which was paid in cash, and the remainder in two notes held by the defendant in error against his brother, which with interest amounted to over $ 1,600; that at this date G. W. Gaunt executed to Samuel W. Gaunt, the defendant in error, a bill of sale for the goods; that the defendant in error took possession of the same at the date of the bill of sale, and held possession thereof until March 13th, 1882, when the goods were levied upon under attachments.

The question before the trial court and jury was as to the validity of the sale made by G. W. Gaunt to defendant in error, Samuel W. Gaunt. Judgment was rendered in the trial court in favor of the defendant in error and against the plaintiffs in error.

The motion for a new trial only set forth that the verdict was contrary to the weight of evidence and the law, and that the trial court erred in directing the jury; therefore we cannot consider the questions presented concerning the admission and rejection of evidence. If any errors were committed in the admission and rejection of evidence, they were errors of law occurring at the trial, which were waived when not presented in the motion for a new trial.

One of the instructions complained of is as follows:

"The plaintiff claims, in his evidence, that he purchased the property of G. W. Gaunt before the commencement of this action to satisfy a debt due him from said Gaunt, contracted in good faith before the commencement of this action. Upon this claim, the following is the law: When a person purchases goods with the knowledge that the person from whom he purchases intends, by the sale, to defraud his creditors, or hinder or delay them in the collection of their debts, such purchaser will not be affected thereby, if he takes the goods in good faith, in payment for an honest debt. The creditor violates no rule of law when he takes payment of his debt, though he knows that other creditors are thereby deprived of all means of obtaining satisfaction for their equally meritorious claims. Therefore, if you believe from the evidence that G. W. Gaunt sold the property, or any part of the same, to the plaintiff in this case, for the purpose of paying a debt honestly contracted and due the said plaintiff from said G. W. Gaunt, then such sale would not be fraudulent as to the plaintiff, for the amount of such indebtedness, even though said plaintiff knew, or had reason to know, that said G. W. Gaunt intended by such sale to defraud his creditors, or hinder or delay them in the collection of their claims against said G. W. Gaunt."

This instruction, under the circumstances of this case, was erroneous and misleading. It has been frequently held in this court that a debtor has a right to prefer one creditor over another, and that the vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interests. (Randall v. Shaw, 28 Kan. 419, and cases ...