Fink v. Phelps

Ellison, J. Plaintiffs sued defendant by attachment, attaching a stock of goods in Aullsville. Inter-pleader filed his interplea claiming to have purchased the goods in good faith a day or two prior to the attachment.. Judgment was given for interpleader and plaintiffs appeal. Interpleader was postmaster of Aullsville, in which town the goods were situated, and kept his office in the defendant’s store-room for some time before his purchase, and occasionally assisted defendant in sales and sometimes made purchases of produce for him. Among the prominent issues in the case was whether there had been a complete, open, and notorious change of possession of the goods as required by the statute. This issue was made in the evidence and emphasized [435] by instructions for either party. Under this state of the case, the court gave for interpleader the following instruction: “ The jury are instructed that although they may find and believe from the evidence that George Phelps, when he made sale o'f goods mentioned in evidence to Hendricks, interpleader, that he made said sale for the sole purpose of hindering, delaying, or defrauding his ■creditors; yet the jury must find for the interpleader Hendricks, unless they are satisfied, by a preponderance of the evidence, that said Hendricks knowingly aided such fraudulent design, or had knowledge of such fraudulent intention on the part of Phelps.” It will be noticed that this instruction purports to cover the whole case and directs a verdict for the inter-pleader without reference to a change of possession. Under the direct ruling of the Supreme Court, in the Sullivan case, 89 Mo. 169, we will be compelled to reverse the judgment. It is there held that “an instruction which hypothecates a state of facts and upon their existence directs a verdict, is improper unless all the facts are hypothecated which are necessary to sustain a verdict.” It is also there said that in such case the jury “have the court’s declaration that this is the whole case, which is put before them in one instruction.” The Italics are my own. The Sullivan case is familiar to the bar of the state and it is unnecessary to further refer to it or to comment thereon. The other instructions are substantially correct. Number five for interpleader is not fairly subject to the criticism made upon it in plaintiffs ’ fourth., as it requires the purchase to have been made in good faith. Numbers two and four for interpleader are correct in themselves, and, in connection with the others, are not misleading. They do not purport to cover the whole case, nor do they direct a verdict on the matters hypothecated in them. The judgment is reversed and the cause remanded. All concur.