Walkeen Lewis Millinery Co. v. Johnston

• Decision Date: 26 May 1908
• Citation: 111 S.W. 639,131 Mo. App. 693
• Parties: WALKEEN LEWIS MILLINERY CO. v. JOHNSTON.
• Court: Missouri Court of Appeals

111 S.W. 639

131 Mo. App. 693

WALKEEN LEWIS MILLINERY CO. v. JOHNSTON.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

1. ATTACHMENT — GROUNDS — QUESTIONS FOR JURY.

On the trial of the issue on a plea in abatement of an attachment, whether defendant was about to remove her property from the state with intent to defraud or delay creditors, or whether she was about to remove from the state with intent to change her domicile, held, under the evidence, for the jury.

2. EVIDENCE — HEARSAY — ADMISSIONS BY AGENT — AUTHORITY OF AGENT.

A statement of an agent will not bind the principal as an admission against interest, unless it is, (1) within the scope of the agent's authority; (2) in reference to the subject-matter of the agency; (3) made at the time of the transaction, either while engaged in the performance or so soon thereafter as to be in reality a part thereof; and hence, in an attachment suit, where it was alleged that defendant was about to move her effects out of the state with intent to defraud and about to move out of the state with intent to change her domicile, a statement of defendant's agent that he had sold or was selling her property and that she was going west soon, and that she aimed to leave the state, was hearsay and inadmissible as an admission, for the agent had no authority to bind his principal by statements in regard to her intent to move.

3. TRIAL — INSTRUCTIONS — CONFORMITY TO EVIDENCE — FAILURE TO OBJECT TO TESTIMONY — EFFECT.

In an attachment suit, where a witness for plaintiff testified over objection that defendant's agent who had sold her property stated that she was aiming to leave the state, but on cross-examination the witness volunteered the same statement, without objection or exception thereto, there was not such a waiver of error as to authorize an instruction over objection that admissions or statements made by the agent concerning the disposition of her property and her intentions would become admissions and statements of the defendant.

4. FRAUDULENT CONVEYANCES — EVIDENCE — PRESUMPTIONS — GOOD FAITH.

In the absence of proof to the contrary the law will presume that a deed of trust was a valid instrument, executed in good faith to secure the indebtedness mentioned in it.

5. TRIAL — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where there is no evidence on which to predicate a doctrine asserted in an instruction, the giving of such an instruction is error.

6. FRAUDULENT CONVEYANCES — INSTRUCTIONS — ASSUMING BAD FAITH.

Where there was no evidence that a debt secured by a trust deed was settled, and that the deed was intentionally not satisfied of record, an instruction that if defendant with a view to having the trust deed appear as a live instrument allowed it to remain unsatisfied of record after it had served its purpose then it was fraudulent concealment of property, was erroneous as tending to overcome and remove the presumption of good faith.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Attachment suit by the Walkeen Lewis Millinery Company against Blanche Johnston. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Mayhew & Sater and Col. Cloud, for appellant. D. H. Kemp, for respondent.

NORTONI, J.

This is an attachment suit. The defendant owned and maintained a millinery establishment in the town of Monett. She became involved to the extent of a few hundred dollars for goods purchased on account of her stock in trade. The accounts were overdue and she was being pressed for settlement when she conveyed a piece of real estate owned by her in that town to one Wilson under such circumstances as to excite suspicion. An attachment proceeding was filed and the property levied upon while the deed was being held in escrow by the First National Bank, and the title to the property undergoing examination. The bank was also summoned as garnishee, as will appear by reference to the case of Walkeen Millinery Co. v. Johnson First Nat. Bank, 129 Mo. App. 66, 109 S. W. 847. The grounds alleged for the attachment are five in number, as follows: That the defendant is about to remove her property or effects out of this state with intent to defraud, hinder, or delay her creditors; that the defendant is about to remove out of this state, with the intent to change her domicile; that the defendant has fraudulently conveyed or assigned her property or effects so as to hinder or delay her creditors; that the defendant is about fraudulently to conceal, remove, or dispose of her property or effects so as to hinder or delay her creditors; A plea in abatement was filed, whereby each of the several grounds of attachment mentioned was traversed. In support of the attachment, the evidence tended to prove that defendant, through her agent, Sig. Solomon, sold the real estate mentioned, in the city of Monett, and executed a warranty deed therefor to one Wilson, which was deposited in the bank until abstracts of title could be examined. The transaction consumed a couple of days. Mr. Wilson, the purchaser, deposited a check for about $1,600 with the same bank, as the purchase price of the property. Instructions were given to deliver the draft to defendant's agent, Solomon, upon completion of the abstract showing satisfactory title. A couple of days thereafter, when the abstract had been completed and the title pronounced satisfactory, the bank delivered to defendant's agent, Solomon, the check of its assistant cashier for the amount of the purchase price. Defendant's agent, acting under her instructions, immediately assigned this check to her minor daughter, Eddy Johnston, and deposited the same in the First National Bank to the account of such minor daughter, and delivered the certificate of deposit to defendant. On the same or following day, the daughter, Eddy, signed her name to a check for $600 which was delivered to the agent, Solomon, for the purpose of making a loan on real estate. Solomon negotiated the loan, taking a note and deed of trust securing the same in his own name, assigned the note in blank, and...