Stewart v. Cabanne

• Decision Date: 10 February 1885
• Citation: 16 Mo.App. 517
• Parties: W. W. STEWART, Respondent, v. S. C. CABANNE, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 517

W. W. STEWART, Respondent,

v.S. C. CABANNE, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

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

Affirmed.

R. W. GOODE and A. R. TAYLOR, for the appellant.

L. S. METCALFE, JR., G. M. STEWART and G. A. FINKELNBURG, for the respondent.

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

This is a suit by attachment. Five of the statutory grounds of attachment are assigned in plaintiff's affidavit. It is well settled that if the evidence, under correct declarations of law, supports any of the grounds relied on in the affidavit for an attachment, it will support a verdict of the jury for plaintiff. In this case the jury were instructed by the court, that if they found for plaintiff on some, but not all of the grounds alleged, they should specify the grounds upon which they find for plaintiff, and then state that they find for defendant as to the other grounds assigned in the affidavit. The jury returned the following verdict:--

“We, the jury, find that at the date of issuing said attachment, said defendant was about to fraudulently convey and assign his property and effects, so as to hinder and delay his creditors, as stated in the affidavit.

We, the jury, find for the defendant as to the other grounds assigned in said affidavit.”

The ground on which the jury found for plaintiff was one of the five grounds assigned, and judgment was entered for plaintiff on the plea in abatement.

It is claimed by defendant that this verdict is bad, because it uses the word and in three places, where the word or would have been sufficient, that is that the jury found more than was sufficient to justify the attachment. The case of Crow v. Beardsley (68 Mo. 439), is referred to in support of that view. There, the jury were instructed that, in order to find for plaintiff, they should find that the deed was made to hinder, delay, and defraud defendant's creditors. The instruction there given was held bad on plaintiff's appeal, the court holding that an intention to either hinder or delay or defraud was sufficient. If the instruction would have been held bad on defendant's appeal we might see some relevancy in the reference. The defendant here can not complain, that the jury did not find that he was about fraudulently to convey or assign his property or effects, so as to hinder or delay his creditors, when they found that he was about fraudulently to convey and assign his property and effects, so as to hinder and delay his creditors, because the conjunctive necessarily includes the disjunctive.

The only ground on which the jury found for plaintiff being the one above stated, and the testimony in the record being ample to support the finding, the question arises whether the instructions of the court on that part of the case were correct. There were sixteen instructions asked by the defendant, five of which the court gave, and eleven of which it refused. The court of its own motion gave three instructions to the jury, which embodied substantially all the law asked by defendant in his instructions refused, having any bearing on the question under investigation. The instructions given by the court of its motion, together with the instructions given on defendant's behalf, placed his case fully and fairly before the triers of the fact.

The defendant was a merchant, and the evidence tending to show his fraudulent intent to convey or assign his property, consisted of certain declarations made by him prior to the attachment, followed, immediately after the attachment, by the execution of a chattel mortgage to his mother for the sum of $6,000, covering all his stock in trade, and the execution of another mortgage for the sum of $2,000, to the same party, some time thereafter. There was evidence tending to show that the defendant had threatened shortly prior to the attachment to fix his property, so as to defy attachments. That he made many contradictory statements concerning his assets, liabilities, and solvency. That a short time prior to the attachment he declared himself solvent, and thereafter, within an interval of a few days, said in succession that he would not be able to pay more than ninety cents on the dollar, than seventy-five cents on the dollar, than twenty-five cents on the dollar, until immediately preceding the attachment, he addressed a circular letter to his creditors offering twenty cents on the dollar in full settlement of all his liabilities. There was also evidence tending to show that while he repeatedly spoke of...