Deering & Co. v. Collins & Son

Gill, J. In November, 1887, plaintiffs, Deering & Co., began an attachment suit against defendants, Collins & Son, and levied upon a certain stock of merchandise at Knobnoster, where said Collins & Son had conducted business. A short time before this attachment suit was brought Collins & Soil had made a deed of trust to interpleader Hornbuckle to secure the [77] payment of some twenty-one hundred dollars, claimed to be owing to one C. H. Dewar. This deed of trust covered the same property thus attached by Deering & Co., and when the attachment was levied'interpleader Hornbuckle was in possession under said deed of trust. Hornbuckle interpleaded for the goods, an issue was made, tried before court and jury, and a finding and judgment for the interpleader, from which plaintiffs, Deering & Co., have appealed. I. Under head of “points and authorities,” in brief of appellants’ counsel, we conclude the principal matters complained of relate to the court’s action in giving and refusing instructions, although it may be well questioned if the record permits any such review by this court, since it is uncertain if the trial court was called upon to correct its own errors in this direction. The confusion arises from the misuse of names in designating parties to this controversy. This is a matter in dispute, and of litigation, between Deering & Co., plaintiffs and Hornbuckle, interpleader, and in the record they should be designated as plaintiff'$ and interpleader, respectively. Deering & Co. are not defendants, nor Hornbuckle a plaintiff, as they are at times' called in the record of this cause, but to give any meaning to the motion for new trial herein filed, we must understand by the term plaintiff that interpleader Hornbuckle is meant, and by term, defendant, that plaintiffs Deering & Go. were intended. II. In the matter of instructions given to the jury in this case, the fault appearing conspicuous above all others is, a too great multiplicity of lengthy declarations from the court. The jury becomes thereby confined rather than enlightened, and besides, too, the chances for minor errors, in expressions from the court, are increased. Plaintiffs’ counsel have urged numerous errors in these instructions, given by the court, but a [78] number relate to mere verbal criticisms, and can be dismissed with the remark, that, in our opinion, no serious error is committed, whether the court declare that ‘ ‘ the jury shall be satisfied from the evidence,! ’ or “ shall believe from the evidence,” or “ shall find from the evidence.” If any error was, in this regard, committed, it was entirely harmless. The matter at issue between plaintiffs Deering & Co., and interpleader Hornbuckle, was as to the good or bad faith of the transaction between plaintiffs’ debtors, Collins & Son and Dewar, by which the entire stock of goods was turned over to Hornbuckle to secure an alleged indebtedness of said Collins to Dewar. Hornbuckle was in possession of the goods claiming title as trustee under deed executed by Collins to Dewar, and plaintiffs, Deering & Co., assailed that title for fraud. The burden of proof, on that issue, was therefore with Deering & Co. In the absence of such proof, or if all the facts and circumstances consist as well with honesty and fair dealing, then the jury were justified in finding that there was no fraud, that the said deed of trust was honest and fair. Chapman v. McIlwrath, 77 Mo. 33; Weinstein v. Reed, 25 Mo. App. 50. As often said, it is not necessary to make proof of such fraud by direct and positive testimony. It may be shown by facts and circumstances surrounding the transaction— Weinstein v. Reid (supra). Hence the learned judge, at the trial of ■this cause, very properly declared the law as contained in instruction number 1, given at the instance of Deering & Co. Again plaintiffs complain that the court refused the following instruction by them asked, to-wit: “5. It is not material that the grantee in the deed of trust from Collins may have paid full consideration, if he knew of, or participated in, said Collins’ fraudulent [79] intent or purpose. If, therefore, you find from the evidence, that said Collins made this conveyance for the purpose of hindering or delaying his creditors, as explained in the other instructions, and that said Dewar had knowledge of such intent or purpose, then you should find for the plaintiffs. In a controversy of this nature, this instruction is improper, and the court below properly refused it. If Dewar was a bona fide creditor of Collins, then he had the right to accept the goods in payment or as security for his claim, notwithstanding Collins may have intended thereby to hinder, delay or defraud other creditors, and notwithstanding Dewar may have known of such intent. Mere knoioledge of the fraudulent intent of the debtor is not sufficient to deprive a creditor of his acquired security. He must, in addition, have participated in the fraudulent design of the debtor, have intended to aid and abet the fraud. So long as the preferred creditor, acts with an eye single to secure his own claim, the law will protect him. This doctrine found expression, in Shelley v. Boothe (73 Mo. 74), and has since been repeatedly announced by the appellate courts of this state. A different rule pertains in case of mere purchase. If a party (not a creditor) shall purchase the goods of a debtor seeking to defraud his creditors, and such party have knowledge of such intent by the debtor, and knows that the debtor is seeking to convert his goods into money, and thereby avoid his creditors, then such sale will be void as to such creditors. Frederick v. Allgaier, 88 Mo. 603; Dougherty v. Cooper, 77 Mo. 528. The instructions given in the trial of this cause, in the main and in every substantial particular, conform to the well established law governing such cases. . The reference in instruction number 3,' to the approximate amount of Dewar’s claim, was not error, or, if error, is too insignificant to complain of. Sp, too, the same may be [80] said of the closing paragraph of the same instruction, that Dewar’s rights were not affected by the fact (if it was a fact) that he, Dewar, was insolvent when he accepted the preference. The instruction as to the measure of damages was correct. 31 Mo. 567; 57 Mo. 427. III. Neither is there any cause to complain as to the court’s rulings on the admission or rejection of evidence. It seems that, after objections to certain evidence, as to the value, were made and sustained, that the same witnesses were permitted to give their estimate of values. And it is equally clear that the fact that the court ordered the goods sold, without objection from interpleader, had no possible bearing on the issues being tried in this cause. Prom an examination of all the points made, in the light of the record, it appears there was a fair trial of the issues, and that the case-was submitted to the jury on instructions reasonably favorable to the plaintiffs and interpleader alike, and we, therefore, affirm the judgment. The other judges concur.