State ex rel. Patrick v. Keeler

• Decision Date: 31 March 1872
• Citation: 49 Mo. 548
• Parties: STATE OF MISSOURI, TO USE OF WILLIAM PATRICK, SUCCESSOR TO E. W. DECKER, DECEASED, ASSIGNEE, ETC., Respondent, v. CHARLES C. KEELER, Appellant.
• Court: Missouri Supreme Court

49 Mo. 548

STATE OF MISSOURI, TO USE OF WILLIAM PATRICK, SUCCESSOR TO E. W. DECKER, DECEASED, ASSIGNEE, ETC., Respondent,

v.CHARLES C. KEELER, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

G. P. Strong, for appellant.

Krum & Patrick, for respondent.

ADAMS, Judge, delivered the opinion of the court.

On the 4th of May, 1867, Lytle Wiggin and Richard Crowther made a general assignment for the benefit of all their creditors, under the first section of the assignment law of this State. (Wagn. Stat. 150-1, § 1.) The assignment was made to E. W. Decker, to whose use this suit was brought. It was made in St. Louis, where the assignors did business, and the assignee was absent from the city on the day (Saturday) it was executed. The assignors were wholesale merchants, and on executing the assignment they delivered the key of their store to Judge Krum, who had written the assignment, and who assumed to act for the assignee in his absence, and took possession of the store, by putting Dunklin, the former clerk of the assignors, in actual possession, to hold the same for the assignee. The assignee returned on the following Monday, which was the 6th of May, and immediately took possession of the store and goods, and continued Dunklin therein as his agent, and proceeded at once, under the statute, to have the goods inventoried and appraised. He filed the assignment in the clerk's office, and it was duly acknowledged and recorded on the 8th of May.

The description of the property conveyed by the assignment is, “all the goods, chattels and property, effects, notes, bills and special accounts, which we have or own, and which belong to said firm of Wiggin & Crowther, of whatsoever nature, wherever situated.” The only property shown to or delivered to the assignee was the goods, etc., in the store. It seems, however, from the evidence, that the assignors had. previously to the assignment, sent goods to an auction house in the city, and that this house had sold the goods to the amount of some $4,000, which was paid over to the assignors a few days after the assignment; and also another small amount was paid over to them. And it also appears that the assignors had some goods secreted, which were sent by them out of the State. There is no evidence in the record that the assignee or his agents knew or had any information whatever of these transactions. He took possession, under the assignment, of everything he supposed to be included in the assignment, and at once took steps to obtain the goods that had been sent out of the State. None of the creditors availing themselves of the assignment are proven to have had any information of the abstractions referred to.

A few days after the assignee took possession, Valentine & Co. commenced an action by attachment against the assignors, and the sheriff took possession of the goods in the hands of the assignee by virtue of his attachment. E. W. Decker, as assignee, claimed them, and thereupon the defendants executed a bond of indemnity, under the statutes concerning marshals and sheriffs in St. Louis county, and it is upon this bond of indemnity that this suit was brought. The plaintiff obtained judgment, which was affirmed at General Term, and the defendants have brought the case here by appeal.

At the close of the plaintiff's evidence the defendants asked an instruction in the nature of a demurrer to the evidence, which was refused.

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