Rupe v. Alkire

• Citation: 77 Mo. 641
• Parties: RUPE v. ALKIRE et al., Appellants.
• Decision Date: 30 April 1883
• Court: Missouri Supreme Court

77 Mo. 641

RUPE

v.ALKIRE et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Eads & Graham and Hale & Sons for appellants.

Waters & Wyne for respondent.

HENRY, J.

Plaintiff sued defendants for damages for the seizure by them of a stock of groceries, and, also, for taking possession of the store-room in which he conducted his business, and withholding from him the possession thereof for a period of five days, to the destruction of his said business. The answer was a general denial, and also set up, specially, that Winfrey, one of the defendants, as sheriff of Carroll county, seized the goods under writs of attachment, in favor of the other defendants, against D. Meyers & Co., and as the property of said firm. The replication denied the firm's ownership of the goods. The seizure of the goods by the sheriff under the attachment, was admitted; and it was proved that plaintiff purchased the goods of D. Meyers & Co. before the attachments were issued. There was sufficient evidence tending to prove the sale fraudulent, to warrant the court in submitting the question of fraud to the jury.

1. FRAUDULENT CONVEYANCES.

The court gave three instructions for plaintiff, attempting to define a fraudulent sale under the statute, in the first and second of which the jury were told that plaintiff was entitled to recover, unless the sale by Meyers & Co. was fraudulent, and made, with plaintiff's knowledge, to delay and hinder the creditors of said firm. This required them to find that the sale was made to hinder and delay, while the statute declares a sale void made with the intent to hinder or delay creditors. A sale made with either intent is a fraudulent sale, and while it is no easy matter to distinguish between an intent to hinder and an intent to delay, in Burgert v. Borchert, 59 Mo. 83, this court held an instruction similar to this, erroneous.

2. ____: insolvency.

The second instruction is manifestly erroneous in another respect. It declares that plaintiff is entitled to recover, unless the jury should find that, at the time of the sale, Meyers & Co. were insolvent, and that the sale was made to hinder and delay their creditors, and that plaintiff then knew they were insolvent, and that the sale was made by them with the intent to hinder or delay their creditors. Whether insolvent or not, Meyers & Co. might have made a sale of their goods with the intent to cheat and defraud their creditors, and if plaintiff knew of that intent, that was sufficient to make the sale void as to creditors of Meyers & Co. It was, therefore, wholly immaterial in that aspect of the case whether Meyers & Co. were solvent or insolvent, or if insolvent, whether plaintiff knew it or not.

3. ____: vendee's lack of caution: willful ignorance.

The court, at defendants' instance, gave seven instructions, which fairly presented the law applicable to the evidence in the cause, and refused six asked by them. The seventh refused should have been given. It was as follows: “The jury may, in order to determine whether the plaintiff had knowledge of the fraudulent intent of Meyers & Co., take into consideration the acts and declarations of the plaintiff and Meyers, as well as all the facts and circumstances surrounding the whole transaction; and if the jury believe from the evidence that sufficient knowledge was obtained by the...