Rock Island Plow Co. v. Lang & Gray

Gill, J. On April 16, 1892, the plaintiff plow company commenced an attachment suit against its debtors, Lang & Gray, and had the sheriff levy on a stock of hardware and farming implements at the town of Hale in Carroll county. In due season respondent Fink interpleaded, claiming the goods by virtue of a deed of assignment made and delivered to him by Lang & Gray April 15, the day preceding the attachment. On trial of this issue between the plow company and Fink, the alleged assignee, the jury under a peremptory instruction from the court found for the interpleader, andfrom a judgment in accordance with the verdict the plaintiff has appealed. I. It will be seen from the foregoing brief statement that this controversy is between the plaintiff,’ attaching creditor, and the interpleader, who claims the [354] goods under a voluntary assignment executed in point of time prior to the attachment. At the time the sheriff seized the goods the store and its contents were in the exclusive possession of the assignee. Plaintiffs attacks the assignment, first, because it was in fact only executed by Lang, one of the alleged assignors — that Gray, the other partner, did not join in the instrument. This objection is fully met by the showing that Lang, in making the assignment for and in behalf of the firm, acted with full authority from Gray. It seems that Lang lived at Hale, where the firm did business; that Gray resided at'St. Charles, Missouri, and that before making the deed of assignment the two partners consulted over the condition of the firm’s business and Lang was unquestionably authorized by Gray to make the deed of assignment for the firm. Under the authority, then, of Blank & Bro. Candy Co. v. Walker, 46 Mo. App. 482, the assignment was valid. We there held, that, though one partner was not authorized, by virtue of the copartnership relation alone, to make a voluntary assignment' for the firm,'yet he might do so with the express assent and direction of the other members. More than this, it seems that the plaintiff cannot object to this alleged want of authority in Lang to make the assignment for the firm of Lang & Gray. So long as Gray does not object, creditors have no right to complain. This seems to have been the ruling of the supreme court in Eppright v. Nickerson, 78 Mo. 482. The further point is made that, as the attachment was levied before the deed of assignment was filed for record in the recorder’s office, the title had not passed to the interpleader, and that, therefore, plaintiff has a superior right to the assignee. This point, too, must be ruled against the plaintiff. The evidence discloses that the deed of assignment was duly executed on the [355] morning of April 15, was delivered to Fink the assignee the afternoon of that day; that he, after affixing his signature and thereby manifesting his acceptance of the trust, went into immediate possession of the stock •closed the store and posted a notice on the door — and of all this the plaintiff had full knowledge before suing out the attachment. The assignment then was,; as to such creditor with knowledge of the facts complete, and the title as to it was in the assignee. It was so ruled by this court in Winn v. Madden, 18 Mo. App. 261. The further assault made on this assignment because of fraud, we consider without any merit. The only basis for this charge which we can discover from reading the testimony comes from the vacillating conduct of Lang, the assignor, when, at the request of the assignee, he went to Carrollton to place the deed of assignment on record. It seems that after executing the deed and placing Fink in possession of the store, Lang, at Fink’s request, went to the county seat to file the instrument in the proper office. On arriving there he was by plaintiff’s agent inveigled into some delay; was induced to consider the propriety of making a deed of trust, etc., so that about twenty-four hours was passed before the deed was deposited for record. In the meantime plaintiff’s agent took advantage of the delay and sued out the attachment. There was not in all Lang’s conduct anything which tended even to show that he was contemplating aiiy fraud or advantage over his •creditors. The delay, under the circumstances, all came from! suggestions of plaintiff’s agent, who was striving apparently to secure an advantage over the other creditors. It was Lang’s desire, clearly, to save his property for the joint benefit of all creditors and not permit it to go to the exclusive use of one. In this the law will protect his acts. [356] Neither was there any conduct on the part of the assignee that should estop him in making a claim to these goods. The sheriff was not induced to act, or to forego action, because of anything said to him by Pink when he went to Hale to attach the goods. Besides, this is not a question in the case, for the reason that no estoppel was pleaded. In our opinion there was nothing at the trial that even tended to overthrow this assignment; the court properly directed a verdict for interpleader, and its judgment is therefore affirmed. All concur.