Zeliff v. Schuster

Philips, P. J. The 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. [498] 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 a debtor applies to subsequent as well as existing creditors of the grantor. Harmon v. Morris, 28 Mo. App. 326; Knoop v. Dist. Co., 26 Mo. App. 303. Yet the law is, that it requires stronger- evidence of a fraudulent intent on the part of a debtor in the case of subsequent creditors than as to existing creditors. Zeikel v. Douglass, 88 Mo. 382. The debts in question here were contracted subsequent to the debt of the sale as claimed by respondent. That sale, as between the vendors and the vendee, was good. To avoid it, it devolved on the attaching creditors to show two facts, first, that it was intended on the part of the debtors to defraud subsequent creditors, and second, that Zeliff had knowledge of that fact, or participated in such fraudulent design, or that he had not paid the whole of the purchase money when the attachment was brought, or that the negotiable note given by him had then been negotiated. II. This case manifestly was tried on the same theory as if the debts in question were existing at the time of the alleged purchase by Zeliff. Had it been tried on the proper theory, it is difficult to discover from the evidence in this record any fact that would have warranted a jury in finding, even against Long & Littel, that at the time of the sale to Zeliff they had it in contemplation to defraud any future creditor. There was no proof tending to show that at the time they were insolvent. They continued in business thereafter, paying their debts contracted for the purchase of goods in the usual course of trade. There was no substantial evidence showing [499] that they had obtained any fictitious credit upon the faith of any representations made by them that they owned the Fairfax store. These very attaching creditors, with as favorable opportunity as Zeliff had, discovered nothing in the conduct of Long & Littel indicating embarrassment, at the time of the reputed sale, for they continued to deal with them on a credit basis. What evidence is there in this record which would justify any jury in finding that at the time of Zeliff ’ s purchase, he had any knowledge of any fraudulent intent on the part of his vendors ? It would be the merest speculation and conjecture to indulge such a suspicion. While fraud, from its very character and habits, is difficult of direct proof, and a wide range of evidence and circumstances is indulged in its investigation, yet the court ought not to throw the reins loose upon the course of examination, and permit property rights to be destroyed upon mere suspicion and unreasonable inference. III. Viewing this case as we do under the evidence, there were really but three issues of fact for the jury to find: first, did Zeliff make the purchase of the goods in question from Long & Littel on or about the time claimed by him ? second, did Long & Littel make said sale with intent to hinder or delay their subsequent creditors ? and if so, did Zeliff at the time of his purchase have knowledge of such fraudulent intent? or did he acquire such knowledge prior to the payment of the purchase money, or prior to the negotiation of the note or notes given by him for the purchase price of the goods, provided such note or notes had been negotiated at all ? One thing is clear, from the instructions given by the court the jury must have found that Zeliff did make the purchase of the goods as testified to by him ; and that all of the purchase money was paid- by him before the goods were attached, save a note of three hundred and twenty-five dollars, given by him to Long. As to the second proposition, that issue was fully and clearly submitted by the instructions to the jury, both on the [500] part of the interpleader and the attaching creditors. Their verdict is conclusive on this court. ' But as to the third proposition, although appellants concede that issue was properly submitted to the jury by the instructions, they contend there was no evidence before the jury from which they could infer that the three hundred and twenty-five dollar note had been negotiated at the time of the attachment; that the only semblance of evidence bearing on this issue was certain evidence introduced at the trial as to what Long had stated on the witness-stand at a former trial herein in a justice’s court. Appellants are, however, in no condition to make such objection here. In the first place, Zeliff was permitted in his redirect examination to testify that Long stated he had negotiated the note, and appellants made no objection and saved no exception. Then, on their part, they introduced witness after witness who testified to what Long testified before the justice of the peace respecting this negotiation of the note. Then in rebuttal, the interpleader introduced witnesses who testified that Long did state that he had transferred the note. To this appellants made no objection. Then in the fourth instruction, asked by appellants and given by the court, the jury were distinctly told to take into consideration “the acts, conduct, and statements of said Long & Littel or either of them, both before-and after said pretended sale.” The statements and declarations of Long, made after the sale to Zeliff, were not competent as against his vendee. Weinrich v. Porter, 47 Mo. 293. But the party who lets in such evidence, without objection, cannot first complain of it here. Schooler v. Schooler, 18 Mo. App. 79. And certainly he cannot complain of it after having himself brought it before the jury, and predicated an instruction upon it. The presumption in such case is to be indulged, that but for the course encouraged by the complaining party the other party would have offered other and competent evidence of the disputed fact. Walker v. Owens, 79 Mo. 567, 568. [501] IV. We discover no sucb contradiction in tbe instructions as suggested by appellants. It is enough to say of tbe criticism, that some of tbe instructions singled out unduly particular facts in evidence, that tbe course pursued by tbe trial court was quite in harmony with the bolding in Zimmerman v. Railroad, 71 Mo. 491; and Nicholson v. Golden, 27 Mo. App. 133, 154. V. Three juries have now returned verdicts in this case in favor of tbe interpleader; and, if properly instructed by tbe court, we see no reason to suppose that a different result would follow-on further trial. Tbe appellants got all tbe law, and more than they were entitled to, on the last trial; and they should be content. Tbe other judges concurring, tbe judgment of tbe circuit court is affirmed.