Powell v. Matthews

• Decision Date: 31 March 1846
• Parties: POWELL v. MATTHEWS.
• Court: Missouri Supreme Court

10 Mo. 49

POWELL

v.MATTHEWS.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

NAPTON, J.

This was a suit commenced by attachment. The affidavit upon which the attachment was issued, alleges an indebtedness to the plaintiff, Powell, to the amount of $774 39 for goods sold, &c., and that the plaintiff had good reason to believe, and did believe, that defendant had fraudulently conveyed, assigned, removed, concealed and disposed of his property and effects so as to hinder, defraud and delay his creditors, and that the defendant was about do to these things. The defendant filed his plea in abatement, denying the fraud. A trial was had, which resulted in favor of the plaintiff. This verdict was, upon application, set aside by the court, and after a mis-trial, a second verdict was ultimately found for the defendant, upon which judgment was entered.

It appeared that Matthews, who lived in St. Louis, being indebted to the plaintiff, and also to the mercantile house of Kimm, Tewes & Harves, was permitted to take a certain amount of goods, under a written agreement to make a weekly account of his sales, and pay over the proceeds, after deducting certain charges. On the 27th January, 1844, Matthews sold to one Huber, goods amounting in value to $240 30, for which he received payment in cash; but in his account furnished to the plaintiff of the sales of that day he only specified sales to the amount of $22 60. The plaintiff thereupon took out this attachment.

Upon the trial the court instructed the jury: 1. That although the jury shall believe that the defendant failed to keep his contract given in evidence, that fact is not sufficient to prove that the defendant before or at the time of this attachment had assigned, conveyed, or disposed of, or concealed his property, or was about to do so. 2. Unless the jury believe from the evidence that the defendant had, prior to the issue of the attachment, made a fraudulent conveyance of his property with the intent to hinder, delay and defraud his creditors, or that he was about to do so, they must find for the defendant. 3. The sale to Huber cannot be called a fraudulent disposition of the property of the defendant, unless the jury believe that said sale was made with a fraudulent intent, for the purpose of hindering, &c. 4. The neglect of defendant, to make a correct return, and to pay over the proceeds of sale to plaintiff or for his benefit, was only a breach of the defendant's contract, but such breach was not in itself a fraud as is contemplated by the attachment law. 5. Under the issue joined, unless the jury believe from the evidence, either, 1st. That the defendant had at the time of issuing the writ fraudulently conveyed, assigned, removed or concealed his property or effects so as to hinder, delay, &c., his creditors; or 2nd. That he was at that time about to do so, they must find for the defendant. 6. The failure on the part of defendant to perform the agreements read in evidence is no greater evidence of the facts charged in the affidavit, than would have been his failure to perform a parol or verbal agreement. 7. The concealment contemplated by the statute on the subject of attachment, means secreting goods, and not concealment of circumstances, or misrepresentation of facts, and this last mentioned conduct is no ground for issuing an attachment. 8. The point in controversy is not whether the plaintiff had reason for suspicion against the defendant, or reason to believe that he was acting improperly, but whether in fact the defendant was guilty of the facts charged in the affidavit. If he was not thus guilty in the opinion of the jury from the evidence, they must find for the defendant.

At the instance of the plaintiff the court instructed the jury: 1. That if they believe from the evidence that at the time of issuing the attachment in this case, the defendant, Matthews, had fraudulently concealed his property, & c., with intent to hinder, defraud, &c., or, 2. If he had fraudulently disposed of his...