State v. Lichtman-Goodman & Co.

• Decision Date: 14 April 1908
• Citation: 131 Mo. App. 65,109 S.W. 819
• Parties: STATE ex rel. WAGGONER v. LICHTMAN-GOODMAN & CO. et al.
• Court: Missouri Court of Appeals

109 S.W. 819

131 Mo. App. 65

STATE ex rel. WAGGONER v. LICHTMAN-GOODMAN & CO. et al.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. EVIDENCE—SECONDARY EVIDENCE—ADMISSIBILITY—EFFECT.

Secondary evidence of a fact admitted without objection is competent proof of the fact.

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS—OPERATION—RIGHT OF ASSIGNOR.

An assignor for the benefit of creditors cannot maintain an action for damages to the chattels assigned in consequence of their subsequent seizure under an attachment, and for the sum the assignee was forced to remit from the purchase price of the goods sold by him under the assignment, since the title to the chattels passed from the assignor to the assignee, who might recover the goods from the sheriff by interplea or replevin, or sue for their value.

3. TRIAL—ISSUES—EVIDENCE.

A party is bound by his testimony, and, where his testimony is uncontradicted, no issue of fact can be framed,

4. PAYMENT—PAYMENT BY NOTES—EVIDENCE —QUESTION FOR JURY.

Whether notes were given by a debtor and accepted by the creditor in payment of the debt held, under the evidence, for the jury.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the state, on the relation of G. E. Waggoner, against Lichtman-Goodman & Co. and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Duncan & Bragg, for appellants. R. L. Ward, for respondent.

GOODE, J.

This is an action on an attachment bond in the usual form. The relator, Waggoner, was indebted to defendants in the sum of $400 for merchandise, and having made a general assignment of all his goods, wares, and merchandise August 18, 1903, to T. J. Little, of Dresden, Tenn., for the benefit of creditors, defendants instituted their attachment action in Pemiscot county, and caused the writ to be levied on several boxes of merchandise. Waggoner owned a stock of goods in Weakley county, Tenn., and a stock in Carruthersville in Pemiscot county, Mo. He included in his assignment to Little both lots of goods; but, as said, a few days afterwards the lot at Carruthersville was seized under the writ of attachment sued out by defendants. Their attachment was sustained; but a trial of the merits before a jury resulted in a verdict in favor of Waggoner. As we infer from the testimony in the present action, this result was due to the following circumstances: Waggoner had been negotiating for a compromise with defendants' attorney who lived in Dresden, Tenn. In the course of the negotiation Waggoner executed and sent to said attorney six notes of $25 each, or $150 in all, in settlement of what he owed defendants. The attorney returned the notes to Waggoner, we suppose, because defendants refused to accept them in payment of the account and instead brought the attachment action. In defense of the merits of said action Waggoner answered that he had discharged the account sued for by giving the six notes, and tendered $25 in payment of the one which fell due first. The verdict in the attachment action in Waggoner's favor can be accounted for only on the supposition of a finding by the jury that he had paid the merchandise account by the notes. In some way not explained the notes passed again into the...