Baer, Seasongood & Co. v. Lisman

BIGGS, J. — TMs is a controversy between an attaching plaintiff and an intervening claimant of the attached property. Baer, Seasongood & Company sued the firm of Lisman & Ramsey by attachment. The sheriff levied on a stock of goods in the possession of E. A. Lutter. The latter interpleaded for the goods. Baer, Seasongood & Company replied that Lutter had recently purchased the property from Lisman & Ramsey, and that the purchase was not made in good faith, but for the purpose of defrauding the creditors of Lisman & Ramsey. On the trial of the interplea the issues were found for Lutter, and Baer, Seasongood & Company has appealed and complains of the instructions. . It appears from the evidence that Lisman & Ramsey had been engaged in selling dry goods in the city of Willow Springs. They had become largely indebted to their commercial creditors. A few days prior to the attachment they sold their entire property to Lutter for $4,350. In paying for the goods Lutter cancelled an indebtedness of $1,600, due him from Lisman & Ramsey for borrowed money, and [320] paid the balance in money and checks. The evidence strongly tends to show a fraudulent purpose by Lisman & Ramsey in making the sale, and there is some evidence that Lutter was a party to the fraud. In the instructions given on the part of the interpleader the jury were told that the finding should be for him, unless the jury found that Lisman & Ramsey sold the goods “with the fraudulent intent to hinder and delay their creditors and that Lutter had knowledge of such fraudulent intent.” The instruction is erroneous, in that it is in the conjunctive, whereas the statute is in the disjunctive. The language of the statute is that a transfer of property is void when contrived “with the intent to hinder, delay or defraud creditors,” etc. R. S. 1899, sec. 3398. The statute attaches to each of the words “hinder, delay, defraud,” a separate meaning (Burgert v. Borchert, 59 Mo. 80; Dunham v. Hallberg, 69 Mo. App. 509), and if a transfer is made for either one of the purposes mentioned the conveyance will be avoided at the- suit of the creditors of the vendor. This makes the error in the instructions of the interpleader apparent and the error is evidently prejudicial. However, it is urged by counsel for the interpleader that the giving of the instructions will not justify a reversal for the reason that in respect to the error of which complaint is made the plaintiff’s instructions properly presented the law. This argument was rejected by us in the Dunham case for the reason that we are unable to say which instruction the jury followed. This was the ruling of the supreme court in State v. Harrell, 97 Mo. 105. Judgment reversed and cause remanded. All concur.