Frederick v. Allgaier

Stibrwood, J. Action for the recovery of a sum of money for the seizure and conversion of a portion of a stock, of goods levied on by defendants under a writ of attachment and claimed by plaintiff to have belonged to him. I. The evidence introduced was on the point of the bonafides of the sale of goods made by Rhodes, the then owner, to plaintiff. On this point there was evidence [602] pro and con, and the result was a verdict for plaintiff. Considering the mere question of evidence adduced at the trial, if the verdict had g'one either way there would be no ground for any interference. II. On the point of the admissibility of evidence there was no error. The mortgages on personal property offered in evidence made by third parties to plaintiff, during the years 1874 to 1881, had no sort of bearing as to the quo animo of the transaction then being litigated,, and were, therefore, wholly inadmissible. This rule is announced in Hubble v. Vaughan, 42 Mo. 138, and is. decisive here. To the same effect is Gutzweiler, Adm'r, v. Lackmann, 39 Mo. 91. III. The fifth instruction given at the instance of plaintiff was as follows : “The jury are instructed that although they may believe from tjie evidence that said Wm. Rhodes sold the goods mentioned in the evidence to plaintiff for the purpose and with the intent to hinder, delay and defraud his creditor’s, and that said sale and delivery of said goods did in fact hinder, delay and defraud the creditors of said Rhodes, yet they will find for the plaintiff unless plaintiff bought and took possession of said goods with the intent, or for the purpose of. hindering and delaying or defrauding the said -creditors.” And the fourth instruction given by the court of its own motion was in these words : “The jury are instructed that a fraudulent intent either in seller or purchaser, need not be proven by direct and positive proof, but may be proved by facts and circumstances surrounding the transaction. If, therefore, the jury believe from all the facts and circumstances detailed in evidence that the said Rhodes made the sale to plaintiff with the intent tó hinder, delay or defraud his creditors, and that the [603] plaintiff at the time of his purchase knew of such intent on the part of Rhodes they must find for the defendants.” It will be readily seen that these instructions, when thus placed in juxtaposition, were plainly inharmonious, the one requiring a verdict for the plaintiff unless he “bought and took possession of the goods with the intent or for the purpose of hindering and delaying or defrauding the said creditors,” the other requiring a verdict for the defendant if “Rhodes made the sale to plaintiff with the intent to hinder,” etc., and “the plaintiff at the time of his purchase knew of such intent,” etc. In the one instance mere knowledge on the part of plaintiff of Rhodes’ fraudulent intent is sufficient to defeat his action, in the other he must have been a participant in that fraudulent intent in order to defeat his recovery. These instructions are clearly irreconcilable and cannot stand together. It is impossible to tell which one the jury took for their guidance; if they took the fifth they must have ignored the fourth, and if they took them both together their verdict could not have been anything else than guess work. This is not a case where, as sometimes happens, one instruction supplies an omission in another, but a case where elements are combined in one instruction totally repugnant to those contained in another given at the same time. . The fourth instruction was the proper one to give, and the fifth one for the plaintiff should have been refused, the doctrine contained in the latter instruction being only applicable to a creditor who buys from an embarrassed debtor, and not to a mere purchaser from such an one. This distinction is clearly pointed out in Shelley v. Boothe, 73 Mo. 74. And the same view as to knowledge' of the purchaser of the intent being sufficient is reiterated in Dougherty v. Cooper, 77 Mo. 528. IY. It is claimed that the fifth instruction for the plaintiff already commented on was correct because- it [604] conforms to tlie issue raised by defendants’ answer, that the sale of the goods was made by “ Rhodes to the plaintiff for the purpose and with the intent, as well on the part of the plaintiff as of said Rhodes, to hinder, delay or defraud the creditors of said Rhodes.” This view is altogether unwarranted, and for this reason: Although it is a fundamental rule of evidence, that the evidence must correspond with the allegation, yet it is equally fundamental that it is sufficient if the substance of the issue be proved. The substance of the issue in the case at bar was whether the plaintiff bought with knowledge, etc. The fact that the answer was drawn too broadly did not require that defendants should be required to offer proof, or to submit to instructions as broad as the allegations of the answer. • i For the errors already mentioned the judgment is reveesid and the cause remanded. All concur.