Bauer Grocery Co. v. Smith

Ellison, J. —Plaintiff instituted an action on an account against defendant and afterwards sued out an attachment in aid, on the ground that defendant had fraudulently conveyed his property so as to hinder and delay his creditors, as well as that he had fraudulently concealed his property so as to hinder and delay his creditors. Defendant filed a plea in abatement, in which issue was taken with the affidavit for the attachment. A trial on this plea resulted in a verdict for defendant, on a peremptory instruction from the court. Objection was made to the affidavit in that the affiant was not the plaintiff and it did not appear that he represented the plaintiff. The objection was overruled, but defendant insists that afterward the court may have concluded the objection was good, and may have, for that reason, given the peremptory instruction. We are of the opinion, that, while it does not appear so clearly as it should who the affiant was, yet, every reasonable inference appears by the record that he was one of plaintiff’s attorneys. The record shows that, in connection with the objection to the affidavit, plaintiff offered it in evidence, showing it to have been made by “Albert S. Hammer.” Plaintiff then “offered the original petition, showing Mr. Hammer to be one-of the attorneys who brought the suit.” We think it the reasonable inference that the expression “Mr. Hammer” refers to Albert S. Hammer. If it does, it shows the affiant to have been the-attorney, und this, as we have held in other cases, is sufficient record showing of the affiant’s agency. 2. The principal controversy is whether plaintff so-far failed to show that defendant had fraudulently disposed of his property so as to hinder and delay his creditors, as to justify the court in giving the peremptory instruction for defendant. The case shows that [670] some two years prior to the attachment, defendant gave to two persons, who were his sureties on promissory notes, a chattel mortgage on his stock of general merchandise, securing the sum of $2,000. That this mortgage was valid on its face, but that defendant was permitted, either by express or implied understanding, to remain in possession of the stock and sell the same in the usual course of business, replenishing the stock from time to time with new goods. There was evidence tending to show that when the sheriff was about to levy the attachment, defendant told him that the goods were mortgaged to the persons aforesaid. The evidence was also such that it might be reasonably inferred that some small, though unsubstantial part of the identical goods was yet in the store, when the attachment was taken out. We think that the evidence was sufficient to entitle plaintiff to the verdict of the jury on the issues involved, and that the court erred in taking the question from them. And we hold this, even on the assumption that the view presented here by defendant is correct. That view, as we understand it, is this: That since the evidence showed substantially all (we will assume it showed all, for present purposes) of the goods which were on hand at the time the mortgage was executed, had been sold before the levy of the attachment, the fraud was a matter then passed and was not longer operative, since there was no property in existence which had been fraudulently conveyed. In other words, the operation of the fraudulent conveyance had ceased. Assuming the truth of this, yet the mortgage was on the defendant’s stock of goods; it was unsatisfied; and thus remained as a cover for the goods, which might, during the life of the mortgage, compose the stock. The tendency, at least, was for it to operate as a concealment from creditors. Defendant’s [671] right, title and interest in the goods was effectually-hidden by the mortgage. We are aware that the causes of attachment as set forth in our attachment •statute, are construed to be separate and .distinct, and that the meaning of one cause is not embraced in another. Bullene v. Smith, 73 Mo. 151. And we have termed this a concealment with a knowledge of that ease. If it be accepted as a fact, that none of the property described in the mortgage was in existence at the time of this levy, and that the mortgage was not originally executed with a view to defraud creditors, yet, if the mortgage was maintained and used to cover the goods attached, as being those conveyed by the mortgage, then it was a concealment of them as effectively as if they had been secreted. In such case, the mortgage would not be a conveyance of the goods attached, nor would it be a disposal of them, since they were still in the possession, control and disposal of the defendant, and, in reality, subject to no adverse interest, though, in fact, concealed under a mortgage which apparently affected them, but which, in reality, did not. We think the court should submit to the jury the question whether any of the goods mortgaged'remained. It will suffice, if any remained of material value, whether a great or small amount. The court should also, on the second theory, submit to the jury, whether the mortgage was being used by defendant as a cover to deceive creditors, and thereby conceal them from such creditors. The judgment will be reversed, and the cause remanded. All concur.