St. Louis Type Foundry v. Union Printing & Publishing Co.

• Decision Date: 04 December 1876
• Citation: 3 Mo.App. 142
• Parties: ST. LOUIS TYPE FOUNDRY, Respondent, v. UNION PRINTING AND PUBLISHING COMPANY, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 142

ST. LOUIS TYPE FOUNDRY, Respondent, v. UNION PRINTING AND PUBLISHING COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

December 4, 1876

1. A contract to pay upon delivery, if demanded, is not a contract to pay upon delivery; and, where no demand was made at the time of delivery, an attachment will not lie upon a failure to pay upon a subsequent demand, as in the case of a failure to pay where the contract is to pay upon delivery.

2. Where any credit is given, attachment will not lie. A failure to pay at the expiration of an uncertain term of credit conditioned upon demand, does not constitute, or raise a legal presumption of, fraud.

3. The same evidence cannot be relied on to establish two wholly inconsistent grounds of attachment.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Martin & Lackland, for appellant, cited: Harlow v. Sass, 38 Mo. 34; Drake on Attach. 615, 620, 622, 624, 625, 628, 637 639, 647, 648, 650, 656; Merchants' Bank of Cleveland v O. & S. Ins. Co., 1 Disney 469; 2 Pars. on Con. 767; Sturdevant v. Tuttle, 22 Ohio 111.

Noble & Orrick, for respondent.

OPINION

GANTT P. J.

This was a suit commenced by attachment, on an affidavit setting forth two causes, viz.: first, that the defendant has failed to pay the price and value of the articles and things delivered, which, by contract, he was bound to pay upon delivery; second, that the debt sued for was fraudulently contracted on the part of the defendant.

On the issue made by the traverse of the statements of the affidavit there was a verdict for plaintiff, and thereupon, there being no denial of the debt, there was judgment for the amount claimed. At the trial there was evidence tending to show that the articles sold were delivered during a period of time beginning in the latter part of 1871 and ending on April 17, 1872. The articles were all entered in a pass-book, and the custom was to present, at the beginning of each month, the account for all the articles got during the preceding month. It was expected that they would then be paid for. This was what was called a cash transaction. The price of the articles sold during December, 1871, was not demanded on January 1, 1872. Had it been demanded, there was then money enough on hand to pay it. A demand was made during January, and $350 was paid on or about the 19th. It had been demanded some time before, but the money was not on hand. Notwithstanding the failure to pay promptly, the plaintiff went on furnishing other articles of the same kind on the credit of the company, which was considered solvent. Assurances were given by the manager that all the debts contracted would be paid. Articles were got from time to time, down to April 17, 1872, and payments made or credits allowed. When the $350 was paid in January, plaintiff was told that the balance would be forthcoming in due time. There were some items for work and labor done, as well as for materials furnished, in the account. The manager of defendant told its purchasing agent to buy for cash; that it would be a cash transaction whenever demanded. Formal demand was made on February 9 or 10, 1872. It was two months after delivery before demand was made. The bill of items began December 8, 1871, and ended April 17, 1872, as far as items to the debit of defendant were concerned. There were numerous, almost daily, items in each of the months--December, January, February, March, and April--between these extreme dates. A witness for defendant stated that the bill was not presented for three or four months after the delivery of the articles. The person who called with the bill was told he would he paid as soon as defendant could possibly get the money. The reply was that it had been standing long enough already. In December, 1871, the assets of the defendant were $40,000 and its liabilities $30,000. The assets were sold under a deed of trust, and realized $15,000. This was some time subsequent to April 17, 1872.

The court gave the following instructions at the request of plaintiff, defendant excepting:

" 1. If the jury believe from the evidence that the property sued for was sold and delivered to the defendant under an agreement or contract that the same was to be paid for on delivery, then the jury will be authorized to find for the plaintiff on that issue as made by the first plea in abatement.

2. If the jury believe from the evidence that the defendant was to pay for the articles and things delivered, as stated in the petition, upon delivery, or that the debt sued for was fraudulently contracted on the part of the defendant debtor, then the jury will find for the plaintiff.

3. If the jury believe from the evidence that at the time of the commencement of the dealings, as to the sale and delivery of the goods and things in question, it was expressly agreed by and between them that the sale was to be for cash, and payment, if demanded, on delivery, then the averment that the defendant was bound by contract to pay upon delivery will be sustained, and the jury will so find."

Defendant asked the following instructions, which the court gave:

" 1. On the first ground of attachment set forth in the affidavit the plaintiff is not entitled to recover, unless the jury believe from the evidence (1) that all the items in the account on file are for goods sold and delivered to defendant; (2) that the defendant agreed with the plaintiff to pay for such items upon delivery of such goods to defendant. If a single item of the plaintiff's demand is not for the sale of goods, the jury should find for defendant on the first ground of attachment.

2. Before the jury can find for the plaintiff on the second ground of attachment, they must be satisfied from the testimony (1) that the defendant made a false representation to the plaintiff in respect to the purchase of the goods mentioned in the petition; (2) that defendant knew at the time that the representation was false; (3) that said representation was material in inducing the contract; (4) that the plaintiff, trusting in said representation and confiding in the same, was by means thereof induced to contract the debt mentioned in the petition. A representation that a party will pay in the future is not a false representation, not being the representation of any fact."

The jury found for plaintiff on both issues, and defendant filed a motion for a new trial:

" 1. Because the court admitted illegal evidence.

2. Because the court excluded legal evidence.

3. Because the court gave erroneous instructions asked for by plaintiff.

4. That the issues and the verdict were contradictory.

5. That plaintiff was permitted to introduce evidence on the second issue, relative to credit given to defendant, which was contradictory of the sworn allegations of the first issue, and contradictory of the evidence given in its support.

6. There was positive proof given by plaintiff on his first issue that the demand was not [solely?] for the sale of goods.

7. There was no evidence on the second issue that defendant was guilty of a fraud, or that the debt was fraudulently contracted."

The court overruled this motion, and, its judgment being affirmed at general term, the case comes here by appeal.

1. The third instruction given by the court seems erroneous. It tells the jury that, " if the sale was to be for cash and payment, if demanded, on delivery," then the contract was to pay on delivery. The words of the statute are that an attachment will lie " when the debtor has failed to pay the price of any article or thing delivered which by contract he was bound to pay upon delivery." It is obvious that the intention of the statute was to denounce as fraud, for which an attachment might issue,...