Redpath Bros. v. Lawrence

Gill, J. At the first trial of this cause in the circuit court, pláintiffs had. judgment, and defendants by an appeal to this court secured a reversal. On a second trial in the court below, and on the same evidence as before, a verdict was returned and judgment entered for defendants, and the case is now here on an appeal by plaintiffs. For a full understanding of the controversy, we now refer to 42 Mo. App. 101. I. The first matter of complaint relates to the action of the trial court in excluding a certain letter of plaintiffs to defendants,- of date December, 1887, and answer thereto by defendants. Of this point it is now sufficient to say, that this ruling of the circuit court was in conformity with our opinion when the cause was here before, and we must, therefore, regard the question settled so far as concerns this case. Rice v. McFarland, 41 Mo. App. 499. II. We discover no just reason to condemn defendants’ first instruction. The plaintiff’s case was predicated on both the fraudulent conduct, intent and declarations of their vendor, Daggett, when he bought their goods, and the knowledge, or reasonable means of knowledge, thereof, chargeable to defendants. Now, while the statements relating to his solvency, which were made by Daggett when he secured the plaintiffs’ goods, were properly evidence as to his fraudulent purposes, yet such statements would not tend to prove [430] fraud on tbe part of the defendants, unless they had knowledge of such representations. III. Defendants’ instruction, numbered 2, has already secured the sanction of this court in this identical case, and, hence, is no matter of error now. IY. Neither do we detect any substantial objection to defendants’ third instruction. It simply advised the jury that fraud must be proved, and not guessed at or found on the mere suspicion of the jury ; that honest motives are presumed; and that before the contrary is found there must be proof thereof by “the evidence, facts or circumstances of the case.” The issues here were fairly submitted, and the judgment must stand. Judgment affirmed.