Stern Auction & Comm'n Co. v. Mason

• Decision Date: 24 February 1885
• Citation: 16 Mo.App. 473
• Parties: STERN AUCTION AND COMMISSION COMPANY, Appellant, v. ISAAC M. MASON, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 473

STERN AUCTION AND COMMISSION COMPANY, Appellant,

v.ISAAC M. MASON, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

KRUM & JONAS, for the appellant: Under a general denial evidence of fraud in the acquisition of the plaintiff's title is inadmissible.-- Frisbee v. Langworth, 11 Wis. 375; Glazer v. Clift, 10 Cal. 303; Hoxell v. White, 1 Moo. & R. 400; Gray v. Earle, 13 Iowa, 188; Demick v. Chapman, 11 Johns. 132; Ely v. Ehle, 3 Comst. 511; Bliss C. Pl., sect. 329; Northrup v. Insurance Co., 48 Mo. 444.

DYER, LEE & ELLIS, for the respondent: Under a general denial in replevin evidence that the plaintiff acquired his pretended title by fraud is admissible.-- Young v. Glasscock, 79 Mo. 574; Greenway v. James, 34 Mo. 328; Bosse v. Thomas, 3 Mo. App. 472.

ROMBAUER, J., delivered the opinion of the court.

The defendant, as sheriff of the city of St. Louis, and under a writ of attachment issued at the instance of one Van Ingen against one Greene, took the property in controversy out of the plaintiff's possession. The plaintiff thereupon brought this action and took the property out of the defendant's possession by writ of replevin.

The plaintiff's petition is in the form usual in such actions, and states the value of the property at $2,000. The defendant's answer is a general denial, with an assertion of claim and a prayer for the return of the property.

The following facts are conceded by the testimony:--

First. That Greene, was a merchant tailor and sold and delivered his entire stock of merchandise for the sum of $2,000 to the plaintiff, who was the proprietor of an auction house.

Second. That Greene, at the time of such sale, was in embarrassed circumstances and largely indebted to Van Ingen and others for the merchandise thus sold.

On the trial in the court below the jury found in favor of the defendant, and the plaintiff being in possession of the property, assessed the value thereof at $3,420, and the court thereupon rendered judgment in favor of the defendant against the plaintiff and its sureties, for the return of the property, or its assessed value, at the defendant's election.

The appeal is prosecuted by plaintiff from this judgment, and the errors complained of by it in this court are:--

First. That the court erred in admitting evidence bearing on the question of fraud in the sale of the property from Greene to the plaintiff, because such evidence was inadmissible under the pleadings.

Second. That the court erred in admitting evidence bearing on the question of Greene's intent to hinder or delay a particular class of creditors.

Third. That the court erred in refusing to instruct the jury on the plaintiff's request that there was no evidence that in making the sale of goods to the plaintiff Greene intended to hinder, delay, or defraud his creditors.

We shall examine these objections in detail, in order to determine whether any of them are well founded.

There is no merit in the plaintiff's first objection. It has been repeatedly held in such actions, that anything that tends to controvert directly ownership and right of possession in the plaintiff may be shown under a general denial. Shulenburg v. Harriman, 2 Wall. 58, 59; Caldwell v. Bruggemann, 4 Wis. 276. Moreover we find the objection definitely disposed of by the ruling of the court in Young v. Glascock (79 Mo. 575, 577), which was in most respects identical with the case at bar, and where the court in overruling the same objection holds, that any proof on part of the defendant, which goes to show that the plaintiff at the time of the institution of the suit was not the actual owner, and was not entitled to the possession of the property, is admissible under the general issue, even though it extend to the proof of fraud in the acquisition of the plaintiff's title.

The second complaint of the plaintiff is based on this fact. In the course of the examination of Greene, the defendant in the attachment, who was examined on behalf of the defendant, he stated that his purpose and object in making the sale was to pay people from whom he had borrowed money. Thereupon the following question was put to him by the defendant's counsel:--

“ What with reference to creditors for merchandise?” Counsel for the plaintiff objected to the testimony as incompetent, but the court overruled the objection, stating that what the purpose and intent of the vendor was is a question for the jury. The witness then answered the question as follows: “ My purpose was to pay out as much as I got, and pay the rest as soon as I could get on my feet to pay it.” Now, disregarding the fact, that the objection, if tenable at all, was not put on the proper ground, and conceding for the sake of argument the further fact that inquiry into the vendor's purpose and intent in regard to a particular class of creditors is irrelevant, it is not apparent how the answer of the witness, which does not tend to show any purpose or intent on his part to hinder or delay by...