Ward v. Stutzman

• Decision Date: 05 May 1919
• Docket Number: No. 13232.,13232.
• Citation: 212 S.W. 65
• Parties: WARD v. STUTZMAN et al.
• Court: Missouri Court of Appeals

212 S.W. 65

WARD v. STUTZMAN et al.

No. 13232.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by D. B. Ward against Ora Stutzman. Judgment for plaintiff, and writ of execution issued. Claim to ownership of property levied on was filed by Elsie N. Maupin. Judgment for claimant, and plaintiff appeals. Motion to dismiss appeal overruled, judgment reversed, and cause remanded.

Samuel Feller, of Kansas City, for appellant.

New, Miller, Camack & Winger, of Kansas City, for respondent.

BLAND, J.

The defendant, Ora Stutzman, owned a stock of jewelry and fixtures, and on the 26th day of August, 1914, sold it to claimant, Elsie N. Maupin. No notice, such as is required by the Bulk Sales Law, was given. Laws of 1913, p. 163. In the following April Stutzman confessed judgment in favor of plaintiff. About two weeks thereafter plaintiff had an execution issued on this judgment, and the sheriff levied it on the stock of jewelry then in possession of claimant Maupin as purchaser from Stutzman in the preceding August. Claimant Maupin then filed her claim with the sheriff, asserting her ownership of the property. Thereupon plaintiff gave the sheriff an indemnity bond, and the latter sold the property to a stranger to these proceedings. Plaintiff filed his answer to Maupin's claim, and to this answer Maupin filed a reply, in which she pleaded the 90-day statute of limitation prescribed in section 4a of the act of 1913 (Laws of 1913, p. 163). The case was tried on the contention of plaintiff that the sale from Stutzman to Maupin was void under the provisions of the Bulk Sales Law. The trial court held that said law was not complied with, and the case was appealed. This court on February 12, 1917, reversed the judgment. Ward v. Stutzman, 195 Mo. App. 376, 191 S. W. 1090.

The suit was again tried, plaintiff filing an amended answer to Maupin's claim, in which plaintiff set up that said sale or trade was void, because made by Stutzman with intent to hinder, delay, and defraud his creditors, and especially this plaintiff, and that claimant Maupin knew of such purpose and intent. These allegations were denied by Maupin, and the case was tried on that issue, which resulted in a verdict in favor of claimant Maupin.

The court, at the request of Maupin, instructed the jury that their verdict should be for Maupin, "unless you further find and believe from the evidence that defendant Stutzman made said sale and transfer of said property for the purpose and with the intent of defrauding and delaying his creditors." (Italics ours.) Plaintiff urges that the giving of this instruction was error, and the point is well taken. The statute (section 2881, M. S. 1909) provides that:

"Every conveyance or assignment in writing, or otherwise, of any estate or interest * * * in goods and chattels, * * * made or contrived with the intent to hinder, delay or defraud creditors of their lawful actions, damages, forfeitures, debts or demands, * * * shall be from henceforth deemed and taken, as against such creditors and purchasers, prior and subsequent, to be clearly and utterly void." (Italics ours.)

Under this statute a sale made with the intent either to hinder, defraud, or delay creditors is fraudulent. It is not necessary that the intent be to defraud and delay creditors. In other words, the instruction should have been that the finding should be for Maupin unless Stutzman made a sale for the purpose and with the intent of hindering, delaying, or defrauding his creditors, etc. The giving of the instruction, worded as it was, was reversible error. Rupe v. Alkire, 77 Mo. 641; Burgert v. Borchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435; Baer, Seasongood & Co. v. Lisman, 85 Mo. App. 317; Dunham-Buckley & Co. v. Halberg, 69 Mo. App. 509.

Claimant Maupin contends that because the jury were correctly instructed in several of plaintiff's instructions, it being urged that all of the instructions should be read together, that the jury could not have been misled. Claimant Maupin's instruction No. 1 covered her entire case and directed a verdict. Under such circumstances the error in said instruction could not be cured by a correct statement of the law in plaintiff's instructions. Dunham-Buckley & Co. v. Halberg, supra; Baer, Seasongood & Co. v. Lisman, supra; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S. W. 984; State ex rel. Met. St. Ry. Co. v. Ellison, 208 S. W. 443.

It is the contention of the claimant that the verdict was for the right party, and therefore the judgment should be affirmed, regardless of the error mentioned. We are unable to agree with this contention. There was evidence to go to the jury on the question as to whether the conveyance was fraudulent. At the time of the transfer Stutzman was indebted to plaintiff and various other parties, but the total amount of his indebtedness was nothing like the value of his stock of goods. He (Stutzman) owed plaintiff the sum of $623 for goods purchased and which went into his jewelry business. Stutzman's entire stock of merchandise and fixtures was traded in bulk to Maupin for real estate in Excelsior Springs, Mo. There was testimony that the real estate was incumbered in the sum of $1,950 and was worth $2,400, leaving an equity of $450. There was testimony that Stutzman's stock was worth $2,800. Maupin agreed to assume about $450 of Stutzman's bills. The trade rendered Stutzman insolvent, which Maupin knew. Maupin also knew of Stutzman's indebtedness, including that of Ward. We think that under the...