Meredith v. Wilkinson

Thompson, J., delivered the opinion of the court. The plaintiffs sued out two successive attachments against the property of Munson M. Wilkinson. Both were levied upon certain personalty claimed to be the property of the defendant, but found in the possession of Walter S. Wilkinson and Benjamin F. Wilkinson, who were partners doing business under the name of Wilkinson Brothers. These latter interpleaded for the property, claiming it by virtue of an absolute bill of salé, by which defendant had undertaken to convey it to them to satisfy certain indebtedness alleged to be due to them from him, and also to indemnify them as sureties on certain promissory notes of his. The plaintiff answered the interplea charging in substance that the conveyance to the interpleaders was contrived between them and the defendant for the purpose of hindering, delaying, and defrauding the creditors of the latter. The issue was tried by a jury, who returned a verdict for the plaintiff and against the interpleaders, upon which judgment was entered that they take nothing by their interplea; and from this judgment they now appeal to this court. We shall notice the principal errors which they assign, not noticing several which do not seem to require any observation. I. The first is that “the verdict is so utterly at variance with common sense, so opposed to the weight of the evidence, so against the manifest truth of the matter, so opposed to the law, even as declared by the trial court,—that it must have been the result of caprice, prejudice, passion, or some other cause other than a conviction that appellants acted in bad faith in pur-, chasing the property, and it should not be permitted to stand.” We are of opinion that this assignment of [8] error is not well taken. The verdict is plainly supported by substantial evidence, and is not opposed to the law as declared by the court. II. After defendant had transferred the property in controversy to the interpleaders and delivered the possession of it to them, he started for California. On his way thither he stopped at St. Louis, and called upon the firm of Brockmeyer & Sevil, and there had a conversation with Mr. Schudy, who was employed in that house, and represented to him that he (Schudy) was • to have half of his wheat crop the coming year, and that another man was to have the other half ; that he had left word with Walter Wilkinson (one of these inter-pleaders) that it was to be fixed in that way ; and that he asked for a loan of one hundred dollars, upon the strength of Brockmeyer & Sevil getting half of his wheat crop. This testimony was objected to by the inter-pleaders, on the ground that the declarations or statements of the vendor of the interpleaders, made after the sale and delivery of the property to them, not in their presence and hearing, or in the presence or hearing of either of them, were not competent to affect their rights. The court overruled this objection, and the interpleaders excepted. This ruling was plainly erroneous. Assuming that a sufficient foundation had been laid for the introduction of the evidence of the statements of the defendant on the ground that a conspiracy to defraud the creditors of the defendant had been shown to exist between the defendant and the interpleaders,—yet the evidence was inadmissible upon plain principle, because it was not made while the conspiracy was subsisting, but was made after it had accomplished its purpose and had come to an end. The acts or declarations of a co-conspirator, made after the common enterprise has come to an end, whether by accomplishment or abandonment, are not admissible in evidence against the others. State v. Ross, 29 Mo. 32; Laytham v. Agnew, 70 Mo. 48; State v. Barham, 82 Mo. 67, 73; State v. Fredericks, 85 Mo. 145; State v. Reed, 85 Mo. 194; State [9] v. Duncan, 64 Mo. 262; State v. McGraw, 87 Mo. 161; Weinstein v. Reed, 25 Mo. App. 41, 46; Nasse v. Algermissen, 25 Mo. App. 186, 189. In conformity with this principle, there is the further rule that after a vendor has parted with his possession he has no more power to affect the title of his vendee, either by his acts or declarations, than a mere stranger has, but that any declarations which he may thereafter make are hearsay evidence merely, and hence not admissible. Steward to use v. Thomas, 35 Mo. 202; Gutzweiler’s Adm’r v. Lackmann, 39 Mo. 91; Weinrich v. Porter, 47 Mo. 293. An exception to this rule has been admitted in the case where the vendor remains in possession after the sale, in which case his declarations are receivable, as against his vendee, as a part of the res gestae, for the purpose of showing that the sale was made in fraud of his creditors. Boyd v. Jones, 60 Mo. 454, 471. But this exception does not cover the evidence which the court let in, in the present case'; because, although the evidence tended to show that the defendant did remain in possession of some of the property included in the bill of sale, namely, the household goods,—yet he did not remain in the possession of the property which the plaintiff attached in the hands of the interpleaders, and which is the property in controversy. It is admitted that he transferred the possession of this property to them, and that -they were in possession and he absent from the state, at the time when it was attached. III. For the reasons above given, the court also erred in refusing the seventh and eighth instructions tendered by the interpleaders, one of which sought to rule out and the other to limit the effects of the foregoing evidence. IV. The error of admitting the foregoing evidence was increased by the giving of the following instruction at the request of plaintiff: “8. The court instructs the jury that if, from a full and fair review of all the facts and circumstances in evidence, they believe that defendant and interpleaders [10] combined or conspired together, either to hinder, delay or defraud the creditors of defendant, or any of them, then all the declarations and acts of either the defendant or interpleaders, made and done in furtherance of said conspiracy to hinder, delay or defraud, though made in the absence of the other party or parties to such conspiracy, may be taken into consideration in determining whether said bill of sale was executed by defendant and accepted by interpleaders with the intent to hinder, delay or defraud the creditors of defendant, or any of them.” This instruction did not discriminate between the declarations of the co-conspirators made dv/m fervet opus, and declarations of one of them, not either of the interpleaders herein, and not a party to the issues on trial, made after the conspiracy had ended. It was, therefore, tantamount to telling the jury that they were at liberty to consider the evidence of Schudy and hence tending to increase the prejudice created by the admission of that evidence. V. We see no other error in the instructions of which the interpleaders can complain. Taken as a whole, with the exception above stated, they seem to have submitted the issue fairly to the jury, and in a manner approved by the decisions of the Supreme Court. So far as the first, second, and third instructions given for the plaintiff failed to recognize the right of a debtor to prefer one creditor to another, they were supplied by other instructions which were given ; and these instructions, read in connection with the other instructions, do not present a case of contradictory instructions. In the fourth instruction given for the plaintiff, the jury were told that if the amount of the debt which the defendant owed the interpleaders and the amounts necessary to indemnify them as sureties, were “grossly inadequate to the value of the property transferred by said bill of sale to interpleaders, at the time of the execution of said bill of sale, such fact, together with all other surrounding circumstances, may be taken into consideration [11] Tby the jury in determining whether snch sale was-fraudulent,” etc. Exception is taken to the use of the word “ grossly.” We think this is a very strained criticism ; for although in some cases, especially of negligence, the use of the word “gross” in an instruction without defining it has been condemned, yet this-instruction merely submitted to the jury the legal proposition that, where a debtor turns over his property to a particular creditor to pay or secure him, if the value of the property turned over is grossly disproportionate to-, the debt intended to be paid or secured, this is evidence from which an intent to defraud creditors may be inferred. In such a connection, “grossly” means no-more than very or very greatly. It is an ordinary word, which every man is presumed to understand, and we do-not think that it is error to use it in this connection without attempting a specific definition. Courts do not generally assist juries, but rather trammel and embarrass them, when they attempt to define what is already sufficiently plain. In this case, the evidence tended to1 show that there was a wide disproportion between the1 amount of indebtedness and the contingent liability intended to be paid and secured, as claimed by the-inter-pleaders, by the transfer of this property and the value-of the property itself; and whether this was a gross disproportion within the rule was a question of fact for the jury. VI. For the reasons stated more at length in the recent case of Elder v. Oliver, 30 Mo. App. 575, we must hold that no error available to the interpleaders was committed in'awarding to the plaintiff- the right to open and close. The matter is one resting in the sound discretion of the trial court, the exercise of which discretion is not assignable for error except in cases of manifest abuse or prejudice. For the errors above pointed out, the judgment will' ’ be reversed and the cause remanded. All the judges concur.