Desnoyers Shoe Co. v. Lisman

BOND, J. — Defendants, Lisman & Eamsey, were merchants in Willow Springs, Mo., indebted generally in the sum of $5,000, a part of which was due to the plaintiff corpora [344] tion. About tbe 24th of September, 1895, they sold their stock of goods, book accounts, and all other mercantile assets to one E. A. Lutter, a citizen of Wisconsin, who paid therefor the sum of $4,350, made up of a draft of a Wisconsin bank on a Chicago bank for- $2,200, a due bill for $1,600 previously loaned by him to defendants, and a balance of $550, which hé paid in cash. The attending circumstances disclosed in the evidence indicate that this trade was made by defendants for the purpose of hindering, delaying or defrauding their creditors. There are also circumstances from which it might be inferred that the said E. A. Lutter was cognizant of this purpose and intended to assist in its promotion. After he was put in possession of the goods and assets plaintiff herein attached the same, whereupon he interpleaded and upon issues thereon raising the question of fraud in the sale to him, the cause was submitted to a jury and a verdict rendered in his favor, from which plaintiff appealed. The principal error assigned relates to the instruction given by the court at Interpleader’s request, wherein the jury were told that before they could find a verdict for plaintiff they must believe from the evidence that the interpleader participated in an intent on the part of the defendants to “hinder and delay” their creditors. This instruction was wholly unwarranted by the statute, which disjoins the several intents invalidating sales as to creditors of the vendor. R. S. 1899, sec. 3398. The instruction also purported to cover the case and conditioned a finding for plaintiff. Hence it was not cured by other instructions free from the same defect. “The rule reading together all the instructions given in a case, warrants the supplementing of an imperfect by a perfect instruction; or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; but it does not go to the extent of holding that an instruction given for respondent which is radically wrong — that is, [345] perverts the law or prejudices the facts — can be cured by another on behalf of the same party which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other.” Linn v. Massillon Bridge Company, 78 Mo. App. loc. cit. 118 and cases cited. It is insisted, however, by the learned counsel for respondent that the decision of the supreme court in another branch of this litigation (Shoe Co. v. Lisman, 149 Mo. 85), should dominate the present appeal. In that case a judgment for the interpleader was affirmed, but it nowhere appears that the instructions under review before us were passed upon by the supreme court. On the contrary its decision turned entirely on a proposition submitted in the brief of appellant as to the evidential force of the refusal of the interpleader to do — what he had no power to do — , i. e., to stop the payment of the draft by one bank on another indorsed by him in part payment of the purchase of the goods. It follows that the judgment herein must be reversed and the cause remanded. All concur.