McKnight-Keaton Grocery Company v. Hudson & Carte
| Decision Date | 21 February 1910 |
| Citation | 126 S.W. 511,147 Mo.App. 31 |
| Parties | McKNIGHT-KEATON GROCERY COMPANY, Appellant, v. HUDSON & CARTE, Defendants, S. J. HUDSON, Interpleader, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Ward & Collins for appellant.
(1) Where a purchaser buys property from a debtor and pays its value for it, if the sale is made by vendor with fraudulent intent to defeat his creditors and the purchaser knew of that fraudulent intent, then the sale will be void; and the purchaser is not required to participate in that fraud knowledge is sufficient. Dougherty v. Cooper, 77 Mo 528; Ironholt v. Hartwig, 70 Mo. 485; Hill v Taylor, 125 Mo. 331; Frederick v. Allgaier, 88 Mo. 598; Sammons v. O'Neill, 60 Mo.App. 530; Kurtz v. Troll, 175 Mo. 506. (2) A sale made to a creditor to pay an indebtedness to that creditor is good even if made with an intent on part of vendor to defraud other creditors, unless such purchaser participated in the fraud; but the purchaser is not permitted to buy more goods than satisfies his claim. McNichols v. Rubleman, 13 Mo.App. 515, 520; Shelley v. Boothe, 73 Mo. 74; Kurtz v. Troll, 175 Mo. 511; Albert v. Besel, 88 Mo. 150. (3) Where a purchaser appears in the transaction in a dual capacity, both as a preferred creditor and a volunteer purchaser, then the rule as to volunteer purchaser governs; that is to say, a sale will be held fraudulent as to such creditor of the vendor, if the purpose of the latter in making a sale was to hinder or delay his creditors and the purchaser knew of such intention, although he did not participate therein. Mercantile Co. v. Troll, 79 Mo.App. 558; Kurtz v. Troll, 175 Mo. 513.
Duncan & Bragg for respondent.
Conceding for argument's sake only, that the instructions given by the trial court at the instance of respondent were erroneous, still, under the evidence, this court would not be justified in reversing and remanding the cause, as the verdict is the only one that could have been found consistent with the evidence. It is a well-settled rule of law that a judgment may be affirmed on appeal, although infected with error, if it be apparent that a reversal would prove ineffectual and of no benefit to the party asking it, as where the court can see that the same result would inevitably be reached the second time. Henry v. Railroad, 113 Mo. 538; Daniel v. Atkins, 66 Mo.App. 342; State ex rel. v. Branch, 151 Mo. 643; Fitzgerald v. Barker, 96 Mo. 665; 3 Cyc., p. 420, 421; Vogg v. Railroad, 138 Mo. 180; Greer v. Bank, 128 Mo. 575.
This case was here on a prior appeal from another judgment in favor of interpleader (116 Mo.App. 551) which was reversed for an erroneous instruction and we regret to be compelled to reverse it again. The interpleader, S. J Hudson, purchased a stock of goods, store accounts, one horse and three head of cattle, belonging to Lee Hudson and Emery Carte, doing business under the firm name of Hudson & Carte. Shortly after the purchase by S. J. Hudson and on August 28, 1903, plaintiff, McKnight-Keaton Grocery Company, attached the merchandise on an affidavit that the firm had fraudulently conveyed and assigned their property so as to hinder and delay creditors. The goods levied on by the sheriff were sold by order of the court and bid in by the agent of the plaintiff for $ 150. S. J. Hudson filed an interplea in the attachment suit, claiming the goods by virtue of his purchase, which he alleged was made in good faith and that the defendants in the attachment action had no interest in them when the writ was levied. This appeal was prosecuted from the judgment given in his favor on a trial of the issues tendered by the interplea. To render our decision clear, more of the facts not developed on the former appeal must be recited. Interpleader bought the goods, accounts and live stock on August 6, 1903, for $ 1600 and the assumption by him of some small bills the firm owed, and immediately took possession; the purchase price being paid by deducting from the total amount $ 400 which the firm owed interpleader for borrowed money, and $ 61 the firm or Lee Hudson owed him, paying Lee Hudson $ 539 in money and Carte $ 600 in money. The horse was valued at $ 100, the cattle at about $ 50, the book accounts and stock of merchandise each at half the balance of the total price paid ($ 1600). Interpleader testified he lent the firm $ 400 three weeks before the purchase and an account of $ 61 due him had been collected by the firm or his brother, thus making the $ 461 due him, and which was deducted from the price he was to pay. In the deal the accounts acquired by interpleader were valued at ninety cents on the dollar, though they ranged in amount from one to thirty dollars, and were against many persons, mostly employees in sawmills thereabouts, some of whom were unknown to interpleader. The merchandise, though it was not fresh stock, was valued at one hundred cents on the dollar. It looks like the firm was in failing circumstances, as its indebtedness to plaintiff, interpleader and others, amounted to $ 800 or more, which was about the value of the merchandise on hand according to the evidence most favorable to interpleader, while that for plaintiff showed the stock was a remnant worth $ 250 or $ 300. Testimony for interpleader is that a careful invoice of the stock was taken before the purchase was made; whereas for plaintiff the testimony tends to prove no invoice was taken, but the goods were bought by interpleader after a brief negotiation of ten minutes and in the night; that interpleader showed a witness an itemized invoice some time after the sale, showing the stock to be worth $ 350 and interpleader offered to sell it to the witness for $ 270. The cross-examination of interpleader inclines to prove he did not have the cash to make the payment to Lee Hudson and Carte he said he made. Those men left the village of Pascola, where the store was, the night of the sale or the next day; in fact left the state. They owed plaintiff a bill of $ 320 which was left unpaid and may have owed other unpaid debts. Interpleader testified he bought the stock of merchandise for the purpose of enabling his brother Lee Hudson, who was in poor health at the time, to get out of business and go where the climate would suit him better; that he (interpleader) inquired about the debts of the firm and was told it...
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