Jacob Furth Grocery Co. v. May

BIGGS, J. This is a suit by attachment. The defendant Lewis died after it was instituted, and Robert A. May, the administrator of his estate, was substituted as a party defendant. The attachment was sustained under the seventh subdivision of the statute (sections 521, R. S. 1889), that is the jury found on the trial of the plea in abatement that Lewis “had fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors.” In support of the attachment the plaintiff read in evidence a bill of sale of all property owned by Lewis to one Ashton. The terms of the sale were seventy-five per cent of the invoice price of the goods, $500 of the purchase money to be paid in cash and the remainder in monthly instalments of $200 each, for which Ashton was to execute his notes to Lewis. The plaintiff also introduced evidence tending to [327] prove that on the day of the sale or the day thereafter, the agent of the plaintiff offered to accept the notes of Ashton to the extent of plaintiff’s claim; that Lewis declined the proposition and referred the agent to his (Lewis’) attorney. On the other hand the evidence of the defendant was to the effect that the property-was sold for a fair price; that the sale was made with the view of securing money to be used by Lewis in paying his debts and for no other purpose, and that when the attachment writ was served his attorney was endeavoring to communicate with the creditors for the purpose of dividing the proceeds of the sale among them. The court on its own motion gave the following instructions: 1. “If the jury find from the evidence in the cause that the sale from Lewis to Ashton was made with the intent on the part of said Lewis to hinder or delay his creditors, then the verdict should be for the plaintiff on the 7th ground of attachment. Unless the jury so find, the verdict should be for defendant. The burden of proving by the greater weight of the evidence that such intent existed rests upon the plaintiff.” 2. “The only issue in this case is for the jury to determine (under the instructions of the court) from the evidence whether or not A. O. Lewis at the time of the institution of the attachment proceedings herein, had conveyed or assigned his property or effects with the intent to hinder or delay his creditors.” 3. “The burden of proof in this case rests upon the plaintiff, that is, it devolves upon plaintiff to show by a preponderance or the greater weight of evidence that A. C. Lewis in making the sale of his stock of goods and merchandise made the same with the intent to hinder or delay his creditors, and unless it is so shown by the evidence to the jury the verdict should be for the de- • f endant. [328] At the instance of the defendant the following instructions were given: 5. “The court instructs the jury that fraud upon the part of A. O. Lewis in the sale of his property or effects can not be assumed or conjectured, nor can it be inferred by the jury that said Lewis fraudulently sold or conveyed the same, unless the inference is fairly deducible from all the facts given in evidence, and should the jury believe from the evidence in the case that the conveyance made of his property or effects by said Lewis consists as well with honesty of purpose as with a dishonest purpose, then the law presumes that said disposition of his property or effects was not fraudulently made; and if the jury so find, the verdict should be for the defendant, and that too, regardless of the fact that the disposition so made of his property had the effect of hindering or delaying his creditors, or any of them.” 6. “The court instructs the jury that although A. C. Lewis was insolvent, he had the right to sell and convey his property, or any part of it, at a fair valuation, to whomsoever he chose, partly for cash and partly on time, provided he did so for the purpose of paying his creditors in such order or proportion as he might prefer; and this is true regardless of the fact that to so dispose of his property should have the effect to hinder or delay his creditors, or any of them, in the collection of their demands.” A judgment on the merits followed the finding of the jury on the plea in abatement. The administrator has appealed. He claims that the court committed error in the admission of evidence and as to the instructions. As the bill of sale to Ashton was fair on its face it devolved on the plaintiff to establish two propositions of fact. Eirst, that the bill of sale was in fact fraudulent; second, that the effect of the sale was to hinder, delay or defraud the creditors of Lewis. The first issue is submitted [329] by the instructions, but no notice is'taken of the second. Was tbis omission prejudicial error ? We think not. It is undisputed that the sale to Asbton included all the tangible property that Lewis owned. Whatever may have been the intention of Lewis in making the sale, the effect of it was necessarily to delay bis creditors in the collection of their debts, therefore, the circuit court was justified in assuming this as a fact. Another objection to the instructions of the court is that the intent of Lewis in making the sale was an immaterial inquiry, and hence the submission of the issue was misleading. Counsel are also in error as to tbis. As the bill of sale was prima facie valid and the possession of the property was promptly given thereunder, the plaintiff could only show the alleged fraudulent character of the sale by evidence tending to prove that it was contrived by Lewis with the purpose or intent of hindering, delaying or defrauding bis creditors. The evidence introduced by the plaintiff tended to prove such a purpose on the part of Lewis, and the court did right in submitting the issue. "Indeed it was the only issue of fact for the jury. Enders v. Richards, 33 Mo. 598; Stewart v. Cabanne, 16 Mo. App. 517. What we have said disposes of the exception to plaintiff’s oral evidence. The contention of the defendant- at the trial was that Lewis, being insolvent, made the sale to Ashton to avoid a forced sale of his effects with the object of realizing the full value of bis assets for the benefit of bis creditors. If tbis was true, then the sale was not fraudulent. But on the other band if be refused to apply any portion of the cash received from Ashton or to turn over any of the notes of Ashton in settlement of part of plaintiff’s claim and refused to give plaintiff’s agent any satisfaction as to the provision'he expected to make for his creditors, these facts would have a tendency to show that the conveyance was contrived for a fraudulent purpose. As the plaintiff’s evidence tended to prove the state of facts set forth, [330] the court did right iu overruling the objection of the defendant to its admission. With the concurrence of the other judges the judgment will be affirmed. It is so ordered.