Frank v. Curtis & Son

Gill, J. At and before the dates hereinafter named plaintiff Frank was conducting a wholesale liquor business in Cincinnati. He had a branch house at Kansas City operated under the name of Cincinnati Liquor Co., which was managed by Max Rice. One Costello had a saloon on West Ninth street, Kansas City, and on November 3, 1891, was indebted to the plaintiff’s branch house, as also to one Nicol, to Mayes, [353] to defendant Curtis and others. Mayes had a chattel mortgage on the saloon property. On said November 3, Rice went to Costello’s saloon and found it in the possession of the constable who had levied on the same under an attachment sued out by Nicol. It was then, in order to secure his claim, Rice purchased the saloon from Costello, agreeing in payment therefor to put in the plaintiff’s claim, to pay off the Nicol attachment and the mortgage claim of Mayes. From the evidence it unquestionably appears that the aggregate of these debts was in excess of the value of the property. Costello was paid nothing — the plaintiff, by his agent Rice, simply assuming and paying these claims for the entire property. That these several claims were genuine obligations of Costello stands undisputed. Immediately on getting possession of the saloon plaintiff’s agent Rice added something to the stock and put up a notice advising the public of the change in ownership. On the afternoon of the next day (Nov. 4) defendant Curtis brought an attachment against Costello and, under rather aggravating circumstances, levied upon and took the saloon stock away from the plaintiff’s agent. Thereupon this suit in trespass was brought, wherein plaintiff claimed $1,000 damages, compensatory and punitive. On a trial below there was a verdict and judgment for plaintiff in the sum of $400 and. defendant appealed. The matters complained of relate • mainly to the court’s action in giving and refusing instructions. After a careful consideration of all these we fail to discover any just cause for such complaints. This is another one of those instances of a race between the creditors of an insolvent; and the rule holds that the advantages secured by the swift and diligent creditor will not be disturbed so long as he is not [354] implicated in any fraud of the common debtor. If one or more creditors shall first arrive on the ground and get from the1 debtor sufficient of the property to satisfy their claims, the transaction -will be uphold, even though in so doing all the assets of the debtor be exhausted, and even, too, though the debtor by giving such preferences intended to hinder and delay the other creditors, provided only that the favored creditor shall have taken the preference with an eye single to his own security, and not for the purpose of assisting the insolvent debtor in the perpetration of a fraud on others. In the court’s instructions we discover no substantial departure from these well understood rules of law,. except in the giving of defendant’s instruction number 2, wherein the jury were told that if they believed from the evidence that the property was transferred to the plaintiff by Costello for the purpose of hindering and delaying any creditors of said Costello in the collection of their claims then they should find for the defendant. It is scarcely worth while to stop and point out the vice of this instruction. It has no place in a suit of this character. In effect, it advised the jury that if, when the plaintiff accepted this saloon stock in payment of his and the two other claims, the debtor, Costello, entertained the design of hindering or delaying some other creditor, then such transfer would be void and the property might be taken from the plaintiff, though he acted in entire good faith and without even any notice of such fraudulent purpose on the part of Costello. Said instruction was manifestly erroneous. And the inconsistency in the court’s declarations of law, of which defendant’s counsel complain, was brought about by the wrongful injection of this instruction into the court’s charge. And being responsible for this want of harmony defendant is now in no •condition to complain. [355] Y/e notice the criticisms made on plaintiff’s first instruction but fail to see how the jury could have been misled as to the law applicable to the case. It told the jury that if plaintiff accepted the property from Costello in payment of his claim then it was a valid preference “although said Costello was insolvent and was indebted to said defendants and intended to hinder, delay or defraud his creditors, and although said Rice knew of such fraudulent intent, provided said Rice acted solely with a view to secure payment of plaintiff’s debt.” This has been the admitted law of the state for many years, especially since the decision of the supreme court in Shelley v. Boothe, 73 Mo. 74. There was no error in the court’s advising the jury that if they found the defendant guilty of an intentional and malicious trespass' then they might award the plaintiff punitory or exemplary damages. There was evidence tending to prove a willful wrong against the plaintiff’s property, attended, too, by circumstances of aggravation and oppression. Under such circumstances the law not only permits a recovery for the value of the property taken, but in addition will warrant a further sum as exemplary damages. Field on Damages, sec. 69; Milburn v. Beach, 14 Mo. 104. The circumstances attending the levy of defendant’s attachment were much more oppressive and aggravated than in the case just cited. When defendant Curtis and his attorney went to the saloon in possession of plaintiff’s agent they were warned of the fapt of plaintiff’s purchase; but they persisted, and without any apparent cause to question its validity, recklessly and in utter disregard of plaintiff’s claim, seized everything tangible and parried it away. And at the same time, too, for the apparent purpose of frightening plaintiff’s agent into submission, the United States marshal was called on to arrest the agent for having conducted the liquor busi [356] ness without license. It is true that this call on the United States authorities was by defendant’s attorney in charge of the case; but the evidence read in light of the circumstances fully justifies the belief that such oppressive act was by the consent, if not by the express direction of the defendant. Defendant complains that in the court’s instruction to the jury they were told that they might allow exemplary damages “not exceeding $500,” etc. There was no harm in thus advising the jury. This was the amount of vindictive damages asked in the petition; and it was not of such an excessive amount as would even meet the disapproval of the cases cited in defendant’s brief. Discovering no substantial error in the record, the judgment will be affirmed. All concur.