National Bank of Commerce v. Brunswick Tobacco Works Co.

• Decision Date: 30 March 1900
• Citation: 56 S.W. 283,155 Mo. 602
• Parties: NATIONAL BANK OF COMMERCE v. BRUNSWICK TOBACCO WORKS CO., Appellant
• Court: Missouri Supreme Court

56 S.W. 283

155 Mo. 602

NATIONAL BANK OF COMMERCE v. BRUNSWICK TOBACCO WORKS CO., Appellant

Supreme Court of Missouri, First Division

March 30, 1900

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) The validity of the mortgage and the propriety of giving the interpleader's instruction numbered 4, as modified by the court, are the questions involved in this appeal. Folding-bed Co. v. Railroad, 50 S.W. 87; Miller v. Car Co., 130 Mo. 517; Real Estate Co. v McDonald, 140 Mo. 605. (2) Instruction numbered 4, as modified by the court, properly stated the law applicable to the evidence, and the court did not err in giving it. Van Raalte v. Harrington, 101 Mo. 602; State to use v Mason, 112 Mo. 374; State ex rel. v. Purcell, 131 Mo. 312. (3) The court erred in granting a new trial on the ground that the mortgage was void. Barton v. Sitlington, 128 Mo. 164; Gutta-percha Co. v. Supply Co., 50 S.W. 912; State to use v. O'Niell, 52 S.W. 240; Garesche v. McDonald, 103 Mo. 1; Union Nat. Bank v. Mercantile Co., 52 S.W. 196; Mansur & Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587; Hill v. Taylor, 125 Mo. 331; Claflin v. Rosenberg, 42 Mo. 439; Bargert v. Borchert, 59 Mo. 80; Conrad v. Fisher, 37 Mo.App. 352; 18 Am. and Eng. Ency. of Law, 591; State v. Rubber Co., 50 S.W. 321; 2 Cook on Corps. (4 Ed.), secs. 599, 779.

Elijah Robinson and Stuart Carkener for respondent.

(1) If, for any one or more of the causes assigned in the motion therefor, the new trial was properly granted, the judgment must be affirmed. Standard Milling Co. v. Transit Co., 122 Mo. 269. (2) The trial court assigned two reasons for sustaining plaintiff's motion for new trial, viz: That it had erred in giving instruction numbered 4, and that the mortgage in question is void. Either of these reasons was good, and fully justified the action of the court. Instruction numbered 4 did not correctly state the law applicable to the subject, and was calculated to mislead the jury; and because of having given the same, the court properly granted a new trial. It could not have done otherwise. Rupe v. Alkire, 77 Mo. 641; Barrett v. Davis, 104 Mo. 549; State ex rel. v. Purcell, 131 Mo. 317.

MARSHALL, J. Robinson, J., absent.

OPINION

MARSHALL, J.

Appeal by Hickman, interpleader, from an order granting plaintiff a new trial. For the purposes of this case we adopt the statement of the appellant, which is as follows:

"The defendant, the Brunswick Tobacco Works Company, was a corporation engaged in the business of manufacturing tobacco at Kansas City, Mo. It had become indebted to the plaintiff, the National Bank of Commerce of Kansas City, in the sum of $ 10,000, of which amount $ 1,500 fell due on December 30, 1895. The defendant had been endeavoring for some days or weeks to make a loan of between $ 4,000 and $ 5,000 and had spoken to Mr. C. F. Rieger, a loan broker, whose place of business was next door to the defendant. Mr. Rieger, in casting about for someone who could make the loan, bethought himself of Mr. R. S. Hickman, the interpleader, who was a jeweler and pawnbroker, and a partner of the firm of Eyssell & Hickman, located on Union Avenue, in Kansas City. Mr. Rieger and Mr. Hickman had known each other for a long time and were on friendly terms, and Mr. Rieger knew that Mr. Hickman had money to loan, and also that he was desirous of making such a loan as would give employment to his brother, Garland Hickman.

"Mr. Rieger broached the subject to Mr. Hickman, on December 29, 1895, he having previously ascertained from Mr. Kennedy, president of the defendant company, that they would be willing to make the loan, and, as a condition, to furnish employment to one man who should be in charge while the mortgage was in force, and who should have a position after the mortgage had been discharged. The matter on December 29, was discussed in a general way, Mr. Hickman reaching the conclusion that if the security was ample, he thought favorably of making the loan.

"On the morning of December 30th, Mr. Rieger and Mr. Hickman together went to the office of the Brunswick Tobacco Works Co., and looked over the stock of tobacco and fixtures, taking a list of it, and, after some further conversation, it was decided that Mr. Hickman would make the loan of $ 4,700 at eight per cent with the understanding that Mr. Hickman's brother Garland would be put in possession to represent him during the life of the mortgage, and that afterwards he should be given employment.

"Mr. Hickman then went to consult Mr. Day, an attorney, and gave the latter a general outline of what kind of a mortgage he wanted drawn up. Mr. Day took the information from Mr. Hickman, and worked out a form of mortgage which he thought would answer the purpose. Later on, during the same day and about noon, Mr. Day having examined the records to see that there were no liens on the stock, the parties all repaired to the office of the defendant, where Mr. Day, in behalf of Mr. Hickman, examined the minute book of the corporation, and not feeling entirely satisfied with the authority conferred upon the management for the execution of the mortgage, prepared, in the first place, a waiver of notice of a meeting of the directors of the company. There were but three stockholders of the company, Mr. Kennedy, Sr., the young Mr. Kennedy and Mrs. Kennedy. These three were also the directors. The waiver was duly signed by all of the three, providing for a meeting of the directors that day at one o'clock. Accordingly, at one o'clock, the directors' meeting was held, the mortgage was duly authorized by resolution of the board, and the mortgage and notes duly executed, and the former was properly acknowledged and filed in the recorder's office during the afternoon of the same day. Upon the execution and delivery of the notes and mortgage, Mr. Hickman paid over to Mr. Kennedy, for the defendant company, the sum of $ 4,700 in cash; $ 700 of that he drew out of the Union National Bank, from money which he had to his credit, and the remainder, $ 4,000, in cash, he took from his safe in his store on Union Avenue.

"After the delivery of the papers and the payment of the money, the possession of the property, including the key to the safe and the key to the store, was duly delivered to Mr. Hickman, and Mr. Day prepared the usual notice, stating that all property was in the hands of the mortgagee, Mr. Hickman, and posted the notice, or rather several notices, upon the door and windows, Mr. Hickman's brother, Garland Hickman, who had been telephoned for, then arrived, and was put in charge of the store by the interpleader, who then left. He remained in possession of the store until night, when it was closed, and he then went home. Sometime during the night, the National Bank of Commerce brought an attachment suit, broke into the store, and levied upon the property covered by the mortgage.

"The interpleader, Mr. Hickman, duly filed his interplea, setting up his mortgage and possession. The plaintiff filed an answer to the interplea, claiming that the mortgage was made with intent to hinder, delay and defraud creditors, and also that it was made without authority. A trial was had before a jury. The case went to the jury upon the question as to the fraudulent intent of the defendant and the knowledge of interpleader of such intent. The jury found the issues in favor of the interpleader.

"Thereupon the plaintiff filed its motion for a new trial, which was by the court sustained, upon the ground, as set forth in the record, that the court erred in giving the interpleader's fourth instruction as amended by the court, and also for the reason that the mortgage was void."

Upon what ground the court held the mortgage to be void is not disclosed.

The instruction No. 4, modified by the court, above referred to, was as follows:

"Even though you may believe from the evidence that the Brunswick Tobacco Works Company, in giving the mortgage to Hickman intended to hinder, delay or defraud its creditors, and that facts and circumstances were brought to the attention of Hickman, which would have put a prudent...