Calkins v. Farmers' & Mechanics' Bank

ELLISON, J. This action is by a trustee in bankruptcy to recover back from defendant $1,000 paid to it by ’Squire E. Davis who had been duly adjudged a bankrupt by the Federal court. The trial court rendered judgment for plaintiff. It appears that Davis owed defendant a note for $1,000, given June 30, 1900, and due December 30th, of that year. That on Christmas day, a short time previous to the maturity of the note, Davis and the defendant’s officers (cashier and president) together with their respective attorneys had a meeting and conference with reference to this note and to devise means for its payment. Davis told defendant’s officers that he could not pay the note and that he ‘‘ could npt pull through. ’ ’ The cashier did not know of any property Davis owned except his stock of goods, estimated at $2,500, a small lot of household furniture and his wearing apparel. He suggested to him to pay the note by selling his stock. That afternoon Davis sold the stock for $1,250, receiving in payment the purchaser’s check for that amount and indorsing it over to defendant. The defendant [512] cancelled his note and paid him the balance of $250 in currency. The evidence in the cause is so nearly conclusive against defendant that it was perhaps only out of abundance of caution that the trial court refused the peremptory instruction offered by plaintiff. The foregoing statement does not contain all that was shown by direct statement of fact and by reasonable inference that would lead to the inevitable conclusion that defendant’s action in reference tp the note was clearly within the terms of the bankrupt law forbidding preferences. The objections presented here relate principally to the admission of evidence. It is contended that there was error in permitting the fact of the adjudication of bankruptcy to be shown to the jury. It was proper tp show this. That adjudication conclusively established that Davis was insolvent and intended a preference in paying the note ..held by defendant. Landis v. McDonald, 88 Mo. App. 335. It was, therefore', not improper for the court to assume, in instruction number two, that Davis was insolvent and intended a preference; leaving the question of whether defendant’s officers had reasonable cause to believe a preference was intended, this was properly submitted. Another point made for reversal is that the court permitted the introduction of defendant’s motion to require plaintiff to- give security for costs. This objection is practically disposed of by what we have already said. The evidence was perhaps unimportant, but certainly it was harmless. It was shown that defendant was present by attorney when the bankruptcy proceedings were had, Without saying that .it was necessary to show specific notice of these proceedings, it is enough to say that it was not harmful in this case to show the fact. And if it was a matter necessary to prove, the showing made was proper and sufficient for that purpose. It seems that the jury found a verdict for plaintiff [513] without calculating the amount of the interest. It was in the following words: '“We the jury find for the plaintiff in the sum of one thousand dollars with interest at the rate of six per cent per annum from the 15th day of March, 1901. E. West, Foreman.” Judgment was entered on this verdict for $1,066.16. The verdict did not authorize such judgment. The clerk in entering the judgment had no authority to calculate the interest. The jury should have done that. Poulson v. Collier, 18 Mo. App. 604; Dyer v. Combs, 65 Mo. App. 148. For this reason the judgment must be reversed and the cause remanded, unless the plaintiff will, within fifteen days, enter a remittitur for $66.16, so as to leave the judgment as though originally entered for $1,000. If this is done the judgment will he affirmed with costs of appeal against plaintiff. All concur.