Pearce v. Dansforth

• Decision Date: 31 March 1850
• Citation: 13 Mo. 360
• Court: Missouri Supreme Court
• Parties: DAVID PEARCE, INTERPLEADER, v. ISAAC & JAMES DANSFORTH.

13 Mo. 360

DAVID PEARCE, INTERPLEADER,

v.ISAAC & JAMES DANSFORTH.

Supreme Court of Missouri.

March Term, 1850.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

The defendants in error sued out an attachment at the February term, 1849, of the Court of Common Pleas, against Aug. J. Ambler and Alfred A. Heath, partners under the name of Ambler & Heath, dealing in liquors, groceries, &c., on the alleged ground that the defendants in the attachment had made a fraudulent assignment of their property, &c., so as to hinder and delay their creditors, &c. All the property in question, which consisted mainly of liquors, &c., was seized under the attachment, on the 13th January, 1849 (the day on which the writ was issued), as the property of the defendants. At the return term, Ambler & Heath filed their plea in the nature of a plea in abatement to dissolve the attachment, and the issue upon this plea was found against Ambler & Heath.

At the same term of the Court of Common Pleas, Pearce, the plaintiff in error, filed his interpleader, claiming the property taken by the officer under attachment. On the trial of this issue, Pearce, the claimant, to-wit: on the 24th March, 1849, offered in evidence before the jury a note made by Ambler & Heath to Irel Ambler, dated January 11th, 1849, for $4,462 32, payable one day after date; also a deed of trust made by Alfred A. Heath and Augustine J. Ambler (the defendants in the attachment), to said Pearce; the deed of trust bears date January 13th, 1849, and is executed, “Ambler & Heath, [SEAL] Alfred A. Heath, [SEAL] Augustine J. Ambler, [SEAL] by his attorney Alfred A. Heath.” This deed of trust was made and recorded January 12th, 1849, and proported to convey to David Pearce, the interpleader, all the property in question, in trust to secure the payment of the note made by Ambler & Heath for $4,462 32 to Irel Ambler before mentioned. The claimant also read in evidence a power of attorney purporting to be executed by Augustine J. Ambler (one of the defendants in the attachment) to A. H. Heath, the other defendant, which power bears date of January 13th, 1849, the same day the attachment was sued out and executed on the property. The power authorized Heath to settle up the business of the firm of Ambler & Heath, and to collect all moneys due said firm, &c., and to transact all business, &c., by any manner of means whatsoever according to law and to the best of his judgment, &c., to sign my name and affix my seal to all documents which it may be and appear necessary to draw, &c. the power of attorney also expressly ratified and confirmed the making of the deed of trust above mentioned.

Charles Gibson, attorney for claimant, testified that the power of attorney was handed to him on 13th January, 1849, the day the attachment was levied. Witness was practicing law, and acted as the legal adviser of Ambler & Heath, and had been their legal adviser since the spring of 1848. Witness instructed Heath to put the amount, viz., $4,462 32 into a note, and he (witness) would draw a deed of trust, which he did, and it was signed by Heath as above, on the 12th January, 1849, about noon, and immediately put on record. Late in the evening of January 12th, witness found a note on his table signed A. J. Ambler, confirming the deed of trust, as follows: Mr. C. GIBSON--Sir: I hereby acknowledge and confirm the deed of trust made by Alfred A. Heath, as attorney for me in favor of Irel Ambler to a certain stock of goods, late the property of Ambler & Heath of this city, and hold myself amenable for the faithful discharge of the provisions thereof.

St. Louis, January 12th, 1849.

A. J. AMBLER.

Witness had never seen Irel Ambler, the payer of the note, nor did the witness know that A. J. Ambler had ever seen the deed of trust, when he handed witness the power of attorney on the 13th of January. The claimant then proved that some time in September, previous to the attachment, Ambler & Heath sold to Page & Bacon, several drafts in favor of Irel Ambler and indorsed by him, and Ambler & Heath, amounting to $6,000. Here the claimant rested.

On the part of the aftaching creditors it was proved that Irel Ambler resides, and has resided for a number of years in the State of Connecticut. That he is the father of A. J. Ambler, who is brother-in-law to Heath. That Pearce the interpleader lives in St. Louis, but was absent on a visit to the eastern cities when the note and deed of trust were made, and the attachment sued out. Barrel, a clerk in the store of Ambler & Heath, testified that he was in the store, during the whole of the 12th of January, 1849, and that there was no delivery to Pearce or to any one for him of any of the property specified in the deed of trust--witness did not know of any indebtedness of Ambler & Heath to Irel Ambler, and had never sean or heard of the note for $4,462 32, until after the attachment was sued out--witness produced two letters addressed to him by A. J. Ambler one of the defendants, one dated December 28th, 1849, and the other January 6th, 1849, one at Louisville, Ky., and the other at Cairo, Ill., and which letters were received by witness the one on _____ day of January, _____, and the last the 11th January, 1849, both letters directed witness to put up liquors, &c., &c., out of the store of Ambler & Heath to the amount of $3,000 and ship them down to Cairo, consigned to White & Co., and where Ambler would receive them. Witness did not comply with the directions contained in these letters for the reason that the entire stock in the store did not amount to more than one-third of the amount witness was directed to put up and ship, and besides witness had no faith in the person to whom the liquors were to be shipped--witness also testified that on the evening that A. J. Ambler returned to St. Louis which was January 12th, 1849, he asked witness, “do you think we must go by the board?” witness answered, “yes, White's acceptance caused it, not our business.” Ambler then said, “if we must go, we must--make the most of it.” He then proposed to ship the goods to New Orleans, sell them and with the proceeds go to California. Heath was then it St. Louis. E. R. James, book-keeper of Ambler & Heath testified that Irel Ambler was charged with several amounts, debits, on the books of Ambler & Heath, but had no credits on their books. That the amount of debits on the books of Ambler & Heath was several hundred dollars. It was proved also, that neither Pearce, the claimant, nor Irel Ambler were present when said note and deed of trust were made and knew nothing of the note and deed of trust at the time the attachment was levied. That Pearce was in Connecticut at the time the note was sent on there to Irel Ambler, where it was indorsed by him, and brought out by Pearce, who arrived in St. Louis with the note a few days before the trial of this case. The attaching creditors then rested.

In rebuttal the claimant called A. A. Heath (one of the defendants in the attachment), as a witness, who was objected to on the ground of interest, but the objection was overruled and exceptions...