Potter v. Stevens

• Decision Date: 31 March 1867
• Citation: 40 Mo. 591
• Parties: JOHN C. POTTER, Jr., et als., Appellants, v. A. J. L. STEVENS, Garnishee of JOHN MCDOWELL, Respondent.
• Court: Missouri Supreme Court

40 Mo. 591

JOHN C. POTTER, Jr., et als., Appellants,

v.A. J. L. STEVENS, Garnishee of JOHN MCDOWELL, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

On the 7th of April, 1858, plaintiffs instituted a suit by attachment against John McDowell, in which the said Stevens was summoned as garnishee on the 10th day of April, 1858. In his answer, filed October 11, 1858, Stevens admits that on the 31st day of March, 1858, he executed five promissory notes, each for $5,000, payable to the order of said McDowell one, two, three, four and five years after date, and two notes of same date, each for $4,450, one payable two years and the other three years after date; that all of these notes were delivered to John McDowell at the time they were executed, and he has not seen them since. On the 26th day of September, 1864, Stevens filed his amended answer, alleging that he had been enjoined, and believes that before he was garnished said John McDowell had assigned two notes of $4,450 each to George McDowell, and that said garnishee duly paid said notes at maturity, as he was bound to do. The other notes, prior to their maturity, he is informed, were assigned to various parties named in said answer. In the answer it is further alleged that the fee simple title to this property, for which the $5,000 notes were given, was never conveyed to said Stevens, and that there is no valid or valuable consideration for the said five notes.

Plaintiffs filed their denial of the answer of said Stevens.

Instructions given for defendant:

1. If the court, sitting as a jury, find that previous to the said defendant Stevens being summoned as a garnishee in this suit, the notes on which it is attempted to hold him as maker had been delivered to the said John McDowell, and by the said McDowell (before maturity and previous to said garnishment) endorsed over and delivered to George McDowell, there was at the time of said garnishment no indebtedness from Stevens to said John W. McDowell upon which he can be held liable to plaintiff in this suit.

2. The allegations of the garnishee in this case in his answer must be taken as true, unless proved to be untrue by the evidence offered by the plaintiff.

Plaintiff's instructions refused:

1. If the jury believe from the evidence that the notes of A. J. L. Stevens which were transferred by John McDowell to George McDowell were so transferred for the purpose of hindering or delaying the creditors of the said John, or the creditors of J. & W. McDowell & Co., they will find for the plaintiffs for the amount of said notes.

2. The fact that George McDowell became a partner in the firm of J. & W. McDowell & Co. in 1856, and that he put no money into said business, raises the presumption that J. & W. McDowell were not indebted to George McDowell at the formation of said copartnership.

3. If the firm of J. & W. McDowell & Co. and each and all the members of said firm were insolvent or unable to pay their debts on the 31st of March, 1858, neither of the parties could legally transfer to the other partner any negotiable security or notes that he might hold on that day.

4. If the jury believe from the evidence that George McDowell left the employment of J. & W. McDowell at St. Louis, and went into business at Washington with said J. & W. McDowell as a partner, the legal presumption is that at said time there was no indebtedness on the part of J. & W. McDowell to George McDowell.

5. If the jury believe from the evidence that George McDowell came to St. Louis without means in the year 1847, and from the time he so came to St. Louis John McDowell or J. & W. McDowell clothed, boarded and schooled him; and that all the money or means of support which he had came either from John McDowell or J. & W. McDowell until the year 1856, when he went into the firm of J. & W. McDowell & Co.; and that the said George McDowell never made any demand on either said John or the said J. & W. McDowell for services during that period; and that there was no contract to pay said George otherwise than as above stated,--this is evidence tending to prove that neither John nor J. & W. McDowell were indebted to said George when he became a member of the said firm in 1856.

6. If the jury believe from the evidence that J. & W. McDowell & Co. were insolvent when John transferred the notes in controversy to George McDowell, or that the members of said firm were insolvent, then the said John had no right to transfer said notes to George McDowell.

7. If John McDowell was unable to pay his debts, or the debts of J. & W. McDowell & Co., when he transferred the notes to George, and such transfer was not made in good faith for the purpose of paying a legal and subsisting debt to George, said transfer was void as to creditos.

8. If the jury believe from the evidence that neither the firm of J. & W. McDowell & Co., or either the members of said firm were or was solvent or able to pay their debts on the 31st of March, 1858, then neither of said parties could make a transfer of any note to the other parties the necessary effect of which would be to hinder or delay his creditors.

9. Unless the jury believe from the evidence that John McDowell was indebted to George to the amount of the notes transferred to him at the time of said transfer, and that such transfer was made in good faith for the purpose of paying a legal existing debt to said George, and not for the purpose or with the intention of hindering or delaying the creditors of said J. & W. McDowell & Co. or of the said John McDowell, they will find for the plaintiffs.

Judgment was entered for the garnishee, and the plaintiffs appealed.

FAGG, Judge, delivered the opinion of the court.

The facts in this case bear a very intimate relation to those in the case of Potter v. Stevens, decided at the present term. Stevens was summoned as a garnishee in the attachment suit of Potter et al. v. McDowell, instituted on the 7th day of April, 1858. In his answer to the interrogatories propounded to him, and which were the usual ones in such cases, he denied any...