Spencer v. Anderson

• Decision Date: 08 February 1921
• Docket Number: No. 16280.,16280.
• Parties: SPENCER v. ANDERSON et al.
• Court: Missouri Court of Appeals

229 S.W. 226

SPENCER v. ANDERSON et al.

No. 16280.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; Samuel M. Rosenfeld, Judge.

"Not to be officially published."

Action by Olive P. Spencer against Harlow B. Spencer, in which L. E. Anderson and another, copartners doing business as L. E. Anderson & Co., were summoned as garnishees. From a judgment for plaintiff, the garnishees appeal. Affirmed.

Brownrigg, Mason & Altman, of St. Louis, for appellants.

Buder & Buder, A. W. Wenger, and E. E. Schowengerdt, all of St. Louis, for respondent.

NIPPER, C.

Respondent obtained judgment in a garnishment proceeding brought against her former husband, Harlow B. Spencer, wherein Lorenzo E. Anderson and Arthur C. Hilmer, copartners, doing business under the firm name of Lorenzo E. Anderson & Co., were summoned as garnishees, upon an execution issued against the said Harlow B. Spencer, on a judgment against him and in favor of respondent. The judgment was one for alimony in gross, in the sum of $10,000. It appears from the record that this was the third garnishment proceeding brought against the present garnishees. After the beginning, and during the pendency of the second garnishment proceeding, the said Harlow B. Spencer entered into a contract with appellants, whereby his salary was to be paid in advance. The respondent contends that this was fraudulent, and appellants contend that they entered into the contract in good faith, without any fraudulent intent or knowledge of the existing indebtedness against Harlow B. Spencer, and that therefore there should have been a directed verdict for them. Upon this proposition hinges the result of the case.

Without setting out in detail all the testimony, it is conceded by counsel for appellants that there was evidence in the case tending to show that Spencer demanded that his employers pay him his salary in advance, for the purpose of defeating this judgment and stopping these garnishment proceedings. But it is contended, as stated, that appellants had no knowledge of the fraudulent purposes of Spencer, and that, as he was a valuable employé, they did not want to lose him, and therefore agreed to pay him his salary in advance.

Hilmer, one of the appellants, was called as a witness by respondent, and denied all knowledge of any fraudulent intent of Spencer, and learned counsel for appellants contend that respondent is bound by this testimony, and that there was no other witness whose testimony tended to establish fraud. During the examination of Hilmer, he stated that he entered into this contract to pay Mr. Spencer his wages in advance, after Spencer had come to him and told him that he was going to quit unless he did so. He also stated that he knew that he had been previously garnisheed, but denied that he knew the basis of the garnishment. When asked if he remembered an occasion when Mr. Buder, a member of a firm of lawyers who represented the respondent, was up at his office and spoke to him about these garnishment proceedings, and examined the books of the firm, he said he did not remember, that he did not bother with little matters like that. When counsel, who was conducting the examination, asked him if he remembered the occasion when he was in his office and examined the books with reference to these garnishments, he answered that he did not. When he was further asked if counsel did not tell him that they had an alimony judgment against' Mr. Spencer, and that this was the reason they were garnisheeing his (firm, he answered he did not remember. When asked the question concerning a visit to his firm while the second garnishment was in existence, he again stated he did not remember. When asked if this might not have happened and he had forgotten, his answer was, "I don't even know that." When asked the further question, "To refresh your memory, don't you recall speaking to Mr. Buder regarding these garnishments, and telling him, if these garnishments didn't quit, you would have to...