Stein v. Hill

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1107,100 Mo. App. 38
• Parties: STEIN et al. v. HILL.
• Court: Missouri Court of Appeals

71 S.W. 1107

100 Mo. App. 38

STEIN et al. v. HILL.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

SALES—INSOLVENCY OF BUYER—MISREPRESENTATION—FRAUD—SUFFICIENCY OF EVIDENCE—DUTY TO INFORM SELLER—APPEAL —RIGHT TO COMPLAIN OF INSTRUCTION.

1. The fact that the buyer is insolvent, and unable to pay for goods, is not conclusive evidence that he never intended to pay, so as to vitiate the sale for fraud.

2. Evidence, in replevin of goods sold, by the seller against an officer attaching at suit of the buyer's creditor, considered, and held to require submission to the jury of the question whether the buyer, who was insolvent, never intended to pay for the goods.

3. In order to avoid fraud, it is not incumbent on the buyer of goods to inform the seller of his insolvency, no inquiry being made of the buyer as to his financial condition.

4. Where an instruction requested by the plaintiff overstated the law in his favor, he cannot complain on appeal because it conflicts with an instruction given at the defendant's request, which correctly stated the law.

Appeal from circuit court, Scotland county; E. R. McKee, Judge.

Replevin by Stein, Block & Co. against C. I. Hill. Judgment for defendant, and plaintiffs appeal. Affirmed.

Smoot & Smoot, for appellants. Mudd & Wagner, for respondent.

BLAND, P. J.

Plaintiffs conducted a wholesale liquor business in Kansas City, Mo. On February 25, 1901, through their salesman Jacob Newhouse, they sold one barrel of whisky, of the value of $98, to Sharr & McCandless, a retail liquor firm in Scotland county, Mo. The barrel of whisky was received by Sharr & McCandless at their place of business, but was not tapped or opened by them. Afterwards a writ of attachment was issued against Sharr & McCandless, and placed in the hands of defendant as constable, by virtue of which he seized and levied upon the barrel of whisky. Plaintiffs replevied the whisky from the constable, claiming to be entitled to the possession thereof as owners. The answer of the constable was a general denial. A trial by jury was had, resulting in a verdict and judgment for the constable. A timely motion for new trial was filed, which the court overruled, and plaintiffs appealed.

1. The evidence is that Sharr & McCandless were in debt, and hopelessly insolvent, when they purchased and received the whisky; that they knew of their inability to pay for the whisky, and testified that they did not expect to pay for it, unless they should be allowed to continue in business; that they intended to restore the barrel of whisky to plaintiffs, unless they were permitted to continue in business by their creditors. A very short time after the whisky was levied on,—apparently on the same day,—their stock of goods was taken possession of by an attorney for some of the creditors. It is in evidence that Sharr & McCandless had a rating with the R. G. Dun Commercial Agency showing them to be worth from three to five thousand dollars in property over and above their stock in trade; that Sharr & McCandless knew of this rating, but did nothing to procure it, and were not responsible for it; at the same time they did nothing to correct the error. In respect to representations made to him by Sharr & McCandless, Newhouse, the salesman, stated: "In taking former orders from Sharr & McCandless, they made statements to me that they had real estate of the value of from three thousand to five thousand dollars over and above their stock of merchandise on hand; and when I took this order, in the course of our conversation they told me there had been no change in their financial condition." He further stated that he reported to plaintiffs, and that they relied upon his report, as to the financial standing of customers to whom he made sales. Sharr & McCandless, who were offered as witnesses by plaintiffs, testified that they made no representations whatever to Newhouse in respect to their financial condition, and that they were asked no questions by him about their financial condition; that they intended to pay for the whisky if they were permitted to go on and do business and could make the money. For the plaintiffs the court instructed the jury as follows: "(1) The jury is instructed that this is an action of replevin, brought by the plaintiffs to recover a barrel of whisky which they allege was secured from them by fraud and deceit. Now, if you believe, from all the evidence in the case, that the mercantile agency of R. G. Dun & Company represented Sharr & McCandless to be worth from $3,000 to $5,000 over and above all their debts, and that Sharr & McCandless, or both of them, knew of the statement made by the agency, and at the time of said sale represented to the traveling salesman of the plaintiffs that their condition was as represented heretofore in said agency; and that by reason of said representation credit was given, and the whisky in question sold and parted with by the plaintiffs; and if you further believe that at the time of said sale Sharr & McCandless were insolvent, and unable to pay their debts, and that they knew of their condition, and concealed the fact from said plaintiffs,—then said sale was fraudulent and void as against these plaintiffs, and they had a right to rescind the same, and retake the property, and your finding should be for the plaintiffs. (2) If your verdict be for the plaintiffs, it may be in the following form: `We, the jury, find at the institution of this suit plaintiffs were the owners and entitled to the possession of said property in the petition described.'" For the defendant the...