Singer v. Goldenburg

• Decision Date: 04 May 1885
• Citation: 17 Mo.App. 549
• Parties: ADOLPH SINGER, Respondent, v. JACOB GOLDENBURG, CHARLES B. FRANKE, Interpleader, Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 549

ADOLPH SINGER, Respondent, v. JACOB GOLDENBURG, CHARLES B. FRANKE, Interpleader, Appellant.

Court of Appeals of Missouri, Kansas City.

May 4, 1885

APPEAL from Grundy Circuit Court, HON. G. D. BURGESS, Judge.

Reversed and remanded.

Statement of case by the court.

On Nov 30th, 1881, the plaintiff in this case brought suit against the defendant, by attachment, for the recovery of $1,200 due for goods sold by plaintiff to defendant in August, 1881.

Under the writ of attachment, issued in this case, the sheriff levied upon and seized a large lot of boys' and men's clothing as the property of Goldenburg, at the time being in the possession of Charles B. Franke.

Franke duly filed his interplea, claiming as his property the goods so seized. The plaintiff in answer to the interplea, alleged that Franke had made, of the goods attached, a pretended purchase of the defendant Goldenburg, fraudulently, with the intent to hinder, delay, and defraud his, Goldenburg's creditors, and especially plaintiff; and the plaintiff also charged a conspiracy between Goldenburg, Franke and one Nusbaum for the purpose of defrauding plaintiff and the other creditors of Goldenburg. At the trial plaintiff introduced evidence tending to show, that Goldenburg sold and transferred the goods in evidence to Franke with the intent to hinder, delay, and defraud plaintiff and the other creditors of Goldenburg, and that Franke knew of such intent at the time of the sale to him.

The interpleader, Franke, introduced evidence tending to show that he purchased the goods in good faith with no knowledge of such intent on the part of Goldenburg?? and that he had paid Goldenburg the full value of the goods, in money to the amount of $2,000 and in his notes for the remainder of the purchase price, which notes he was amply able to pay. The evidence in this case showed that Goldenburg bought most of his goods until 1881 of Nusbaum. During 1881 he made one or two small orders of him but began trading principally with the Chicago houses.

In August, 1881, he gave Allen, agent for Singer, an order for about $1,700 worth of goods. As the order was larger than usual, Allen inquired as to his indebtedness and was told by Goldenburg that he did not owe Nusbaum and was worth several thousand dollars above his indebtedness. Allen sent in the order, but the house held the order until Goldenburg should come to Chicago. Goldenburg reached Chicago in the last of August. He went to Singer's and paid the balance due the house and remarked that he would pay all his indebtedness that day. When inquired of as to his indebtedness, he denied owing Nusbaum anything, said he was worth $7,000 or $8,000 above his indebtedness--was not going to handle Nusbaum's goods, but patronize Chicago houses.

To other Chicago houses he gave evasive answers or no answers at all. He made large orders for goods while there, some of which were sent, while others were not. To all said statements made by Goldenburg to Allen and others, Francke unsuccessfully objected, for the reason that they were made not in his presence. Numerous witnesses testified as to the conduct of Goldenburg in making the purchases of the goods in evidence, their testimony tending to show that he purchased the goods with the intent to cheat and defraud the parties from whom he purchased them. In the cross-examination of W H. Wilson, the sheriff, the plaintiff against Franke's objection was permitted to show that Franke had bought a part of Goldenburg's household goods, which were sold at public auction and which were not seized by the sheriff under the writ of attachment.

The evidence showed that Franke made the purchase of the goods attached, from Goldenburg, in November, 1881, a few days prior to the bringing of this suit. From the evidence the jury could have reasonably inferred that Nusbaum was a bona fide creditor of Goldenburg, and that Goldenburg made the sale to Franke in good faith, for the purpose of paying his debt to Nusbaum, and that after the sale he did apply the entire purchase price of the goods, both the $2,000 in cash and all the notes given by Franke for the deferred payments, upon the Nusbaum debt, by giving the cash and indorsing the notes to Nusbaum on that account--the Nusbaum debt exceeding in amount both the cash and the face of the notes. The evidence, on the other hand, tended to show that Nusbaum was not a bona fide creditor of Goldenburg, and that the whole transaction between them was fraudulent, and was had for the purpose of defrauding plaintiff and Goldenburg's other creditors. For the interpleader the court gave the following instructions:

4. The court instructs the jury that the only issue on trial in this case is whether the property attached was, at the time thereof, the property of the interpleader, C. B. Franke, or not. And the court further instructs the jury, that if they find that said interpleader was in actual possession of said property when the attachment was levied, then the law presumes that such possession was rightful and lawful, and that said interpleader was the owner of said property.

5. It is admitted by the pleadings in the case that Franke was in the possession of the goods at the time of the levy and seizure thereof.

6. The court instructs the jury that if they find from the evidence that Jac. Goldenburg sold and conveyed the property in question, to the interpleader, Franke, and that Franke paid therefor a valuable consideration in notes and money, then the law presumes that such purchase was made on the part of said Franke in good faith, and honestly, and the court instructs the jury that if said purchase was so made by said Franke, then the jury will find for him, the said interpleader.

7. Even though the jury may believe from the evidence that Goldenburg and Nusbaum entered into a conspiracy or agreement to hinder, delay, or defraud the creditors of Goldenburg out of their just debts, and though they may further believe from the evidence that pursuant to said conspiracy or agreement to hinder, delay, or defraud the creditors of Goldenburg out of their just debts, Goldenburg proposed to sell, and did sell said goods to Franke; yet the jury must find for the interpleader, Franke, unless they believe from the evidence that Franke at the time he bought, had knowledge that Goldenburg was selling for the purpose of hindering, delaying, or defrauding his creditors.

8. In this cause, under the pleading, the jury must find for the interpleader, Franke, unless they are satisfied by a preponderance of evidence, that Goldenburg made the sale of the goods in dispute to Franke, for the purpose of hindering, or delaying, or defrauding his creditors; and that Franke had knowledge that Goldenburg was selling for that purpose and with that intent.

9. Franke's right to the goods acquired under his purchase from Goldenburg cannot be impeached or defeated by plaintiff for any fraudulent intention on the part of Goldenburg, or of Goldenburg and Nusbaum, in making said sale, unless Franke at the time had knowledge of or knowingly aided such fraudulent design.

The court refused to give the following instructions asked by the interpleader:

" 1. The jury are instructed that the statements of Goldenburg as to his indebtedness and financial condition not made in the presence or hearing of Franke, are not to be considered as evidence against Franke, and in determining whether Franke acted in good faith in purchasing the goods from Goldenburg, the jury will wholly disregard all of Goldenburg's statement made out of the presence and hearing of Franke, and the jury are further informed that in making up their verdict they are not to consider G.'s statement made out of the presence and hearing of Franke; and the jury are further informed that in making up their verdict they are not to consider G.'s statement made to Chicago houses in order to obtain credit."

" 2. If the jury find from the evidence that Goldenburg, at and prior to the time when he sold his stock of goods to Franke, was indebted to Nusbaum, and that Goldenburg wanted to give Nusbaum a preference over his other creditors, and that Nusbaum was working to obtain a preference over other creditors, and to have his debt satisfied out of the proceeds to be derived from a sale of the goods to Franke, and Franke knew that Nusbaum was working for that purpose and that Goldenburg was intending to aid Nusbaum by giving him a preference over other creditors; yet a knowledge by Franke of these facts and purposes would not render a sale to Franke fraudulent or void as against the creditors of Goldenburg. Nor would the fact that he knowingly aided Nusbaum to obtain such a preference over the other creditors of Goldenburg, render such sale to him fraudulent or void in favor of such other creditors."

" 3. Hence if the jury find that Goldenburg was indebted to Nusbaum, and that Goldenburg was designing to prefer Nusbaum, and Nusbaum to obtain a preference over other creditors of Goldenburg; yet unless the jury shall find that there was an intent on the part of Franke to hinder, delay, or defraud the creditors of Goldenburg, they must find for the interpleader, Franke; and the intent to hinder, delay, or defraud the creditors of Goldenburg, can not be inferred from the mere fact that Franke may have, prior to the sale, had knowledge that Goldenburg was intending to prefer Nusbaum to his other creditors."

" 10. Notwithstanding the jury may believe from the evidence, that at the time of the sale of the stock of the goods by Goldenburg to the interpleader, Franke, said Goldenburg was largely indebted to varions wholesale merchants on account of the purchase of the goods or some of them, then on hand, yet the court instructs the

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