Zeliff v. Schuster

• Decision Date: 13 June 1888
• Citation: 31 Mo.App. 493
• Parties: J. W. ZELIFF, Respondent, v. ADAM N. SCHUSTER et al., Appellants.
• Court: Kansas Court of Appeals

31 Mo.App. 493

J. W. ZELIFF, Respondent, v. ADAM N. SCHUSTER et al., Appellants.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Atchison Circuit Court, HON. CYRUS A. ANTHONY, Judge.

Affirmed.

Statement of case by the court.

This is an action of interpleader in an attachment suit. The evidence showed that for a year or so prior to April, 1885, the firm of Long & Littel were engaged as partners in the mercantile business at Dotham, Atchison county. They also had a branch store at the town of Fairfax. The business at Fairfax was run by the interpleader Zeliff, as the agent of Long & Littel. The sign over the door of the Fairfax store was, " Cheap Cash Store," with the name of J W. Zeliff underneath it.

In the month of April, 1885, Zeliff claims to have bought out the interest of Long & Littel in the Fairfax store, and that thereafter he conducted the business solely in his name, Long & Littel having no interest whatever therein. Long &amp Littel continued in business as theretofore, at Dotham.

Interpleader's evidence tended to show that, at the time of this purchase by him, he had advanced funds in the business bought out by him and that the firm, and Long individually, were owing him other moneys. In the trade, made more particularly between him and Long for the firm, these debts owing to Zeliff went in as part payment of the purchase money; and for the residue of the purchase price, Zeliff executed to Long, who was his father-in-law, two negotiable promissory notes, one for two hundred and fifty dollars, due six months after date, the other for three hundred and twenty-five dollars, due one year after date. The goods so bought invoiced at $771.74. Thereafter Zeliff, as his evidence tended to show, continued to do business, keeping separate book accounts and purchasing goods from parties and shipping the same, in his name, until he had expended about fifteen hundred or sixteen hundred dollars for additional goods, which were in the store at the time of the levy of the writ of attachment, hereinafter mentioned. His evidence tended to show other acts of a change of possession of said store and its business.

On the first-named note Zeliff paid one hundred and twenty-five dollars, and thereupon Long gave him up the note as paid. On the other note Zeliff had made no payment when the attachment was served. For debts contracted by Long & Littel, in conducting their mercantile business at Dotham, after the imputed sale of the Fairfax store to Zeliff, the plaintiffs, Adam N. Schuster et al., brought suit, and sued out writs of attachment in aid thereof, and seized the stock of goods in the Fairfax store as the property of Long & Littel. This was in November, 1885. Thereupon Zeliff interpleaded in said attachment suit, claiming the goods as aforesaid. The attaching creditors claim that the reputed sale to Zeliff was only colorable and fraudulent as against the creditors of Long & Littel.

The attaching creditors' evidence tended to show that, after the reputed sale, Long & Littel bought goods from various parties for the store at Dotham. Long & Littel continued to make payments and preserve their credit until the fall of 1885, representing that their business was in a thriving condition. They also introduced evidence of statements made by Zeliff which indicated that he had not bought out Long & Littel at the time he claims; and there was also evidence as to statements made by Long touching the question as to whether he had negotiated the unpaid note of Zeliff, which is sufficiently noticed in the opinion. There was also some evidence tending to show that, in the summer of 1885, Long & Littel were seen about the Fairfax store, as if concerned in it; but there was no tangible proof of any sales of goods made by them, or of the exercise of control over that store by them.

There was other evidence, pro and con., but not of sufficient importance to be stated. The jury found the issues for the interpleader.

LANCASTER, THOMAS & DOWE, for the appellants.

I. It is not necessary that a vendee shall have actual knowledge of the fraudulent intent of his vendor. If he has knowledge of facts sufficient to put a man of ordinary prudence upon inquiry as to the intent of his vendor, he is a party to the fraud and the sale is void as against the creditors of the vendor. Rupe v. Alkire, 77 Mo. 641; Stern Co. v. Mason, 16 Mo.App. 473; Frederick v. Allgaier, 88 Mo. 598.

II. If such knowledge comes to the vendee before the payment of the purchase price, the sale is void as against the vendor's creditors. Dougherty v. Cooper, 77 Mo. 528; Arnholt v. Hartwig, 73 Mo. 485; Young v. Kellar, 94 Mo. 581.

III. The giving of negotiable notes for the purchase price is not payment unless the notes are negotiated before maturity, or paid before notice of the vendor's fraudulent intent, or of facts sufficient to put the vendee upon inquiry. Arnholt v. Hartwig, 73 Mo. 485; Paul v. Fulton, 25 Mo. 163, 164; Young v. Kellar, 94 Mo. 581.

IV. The levy of a writ of attachment on the property in the hands of a vendee is notice to him of the fraudulent intent of the vendor. Dougherty v. Cooper, 77 Mo. 528; Arnholt v. Hartwig, 73 Mo. 485.

V. It is error to give instructions which comment on the evidence, or single out particular facts and circumstances, and point out to the jury their weight or probative force. Kendig v. Railroad, 79 Mo. 207; Shaffner v. Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 372.

VI. It is error to give instructions based upon a series of facts as to some of which there is no evidence. Bank v. Overall, 16 Mo.App. 510; Skyles v. Bollman, 85 Mo. 35; Pipkin v. Haucke, 15 Mo.App. 373.

VII. It is error to give instructions that are calculated to mislead or confuse the jury. Donahoe v. Railroad, 83 Mo. 560; Chouteau v. Iron Co., 82 Mo. 73; Greer v. Parke, 85 Mo. 107.

VIII. It is error to give contradictory, conflicting, or inconsistent instructions. Frederick v. Allgaier, 88 Mo. 598; Stevenson v. Hancock, 72 Mo. 612.

IX. Where there is a total failure of evidence to support the verdict, the appellate court will reverse the judgment. Whitsett v. Ransom, 79 Mo. 260.

X. Section 2505, Revised Statutes, relating to change of possession of personal property, applies in favor of prior as well as subsequent creditors. Knoop v. Distilling Co., 26 Mo.App. 303.

XI. The change of possession of personal property from the vendor to the vendee must be open, notorious, and unequivocal; such as will apprise the public without inquiry. Burgert v. Borchert, 59 Mo. 80; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262.

XII. The facts shown in this case do not constitute a change in possession, and the court should have so instructed the jury. Wright v. McCormick, supra; Stern v. Henley, supra.

LEWIS & RAMSAY, for the respondent.

I. There is no evidence of Zeliff's knowledge of any facts making him party to any fraud. The evidence in the case was properly, as to the law, submitted to three juries, who found against the claim of plaintiff.

II. The notes given by Zeliff were paid as to one and the other actually negotiated before the attachment suit.

III. The complaint as to the giving of instructions for interpleader is not justified. It is like the complaint, which was not sustained, in the case of Kendig v. Railroad, 79 Mo. 207; see also, Shaffner v. Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 282. No instructions were given for him which were calculated to mislead or confuse the jury; and there was no evidence that Zeliff had knowledge of fraud, or of facts sufficient to put him on inquiry, or that there was any fraud at all as against plaintiff.

IV. There is no conflict in the instructions on the part of plaintiff, or in all the instructions of both sides taken as a whole.

V. It is only where there is a total failure of evidence to support the verdict that the appellate court will reverse the judgment. Here all the evidence sustains the verdict.

VI. As to the law of instructions see, Mathews v. Elevator Co., 59 Mo. 474; Karle v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323; Ins. Co. v. Hurck, 83 Mo. 21.

VII. As to the law concerning change of possession, we agree to what is said, but the evidence shows a compliance with all requirements in letter and spirit.

PHILIPS P. J.

This instructions in this case are unusually numerous, presenting every possible phase of the questions which ordinarily arise in such trials. The appellants asked twelve, and the court gave ten of them. One of the two refused was in the nature of a demurrer to the evidence; and everything valuable in the other was embraced in other declarations of law given. When the proper view of the facts is taken in this case, it will at once become apparent that the appellants had the benefit of issues and propositions of law much more favorable to them than the law warrants.

I. It may be conceded to appellants that the statute of frauds respecting the fraudulent transfer of property by...