Bemis Bros. Bag Co. v. Ryan Commission Co.

74 Mo. App. 627 | Mo. Ct. App. | 1898

Bond, J.

— Plaintiffs are the execution creditors of the Ryan Commission Company in the sum of $713.26, and as such on the twenty-seventh of March, 1897, caused a levy upon certain personal property in and about a feed store in this city as the property of the defendants in the writ. Margaret E. Kehoe claimed to be the absolute owner of the property seized. Plaintiffs indemnified the sheriff and caused additional levy upon other property in and about said premises, to which Margaret E. Kehoe also set up a claim as absolute owner. Plaintiffs again indemnified the sheriff. Thereupon the claimant executed to the sheriff an indemnity bond for the forthcoming of the property to cover both levies. Upon the return of said claims and bond into court plaintiffs filed an answer to the claim of ownership made by Margaret E. Kehoe, wherein they averred that the bill of sale under which she claimed to be the owner of the property in dispute was fraudulent and void as to them and other creditors of the Ryan Commission Company, the grantor in said instrument. The claimant joined issue by reply. Upon the trial of the issues the claimant introduced a bill of sale to herself of the property levied upon for the alleged sum of $1,000, dated December 16, 1896, and executed by the Ryan Commission' Company by its vice-president, J. T. Bradshaw. Thereupon plaintiffs gave evidence tending to show that prior to the sixteenth of December, 1896, the property embraced in said bill of sale was a part of the assets of a feed store owned and conducted by the Ryan Commission Company; that the claimant was the sister-in-law. of the vice-president of that corporation and employed by it as a bookkeeper of the business carried on at said feed store, upon a salary of $8 per week; that she had no cash at the time of the bill of sale to her; that she paid no money therefor; that she did not give any note for the amount of the purchase money until more than a month after the date of the bill of sale, when she handed her brother-in-law her note for $1,000, payable to the Ryan Commission Company, one year thereafter;, that there were no entries on the book of the Ryan Commission Company, nor on the books of the feed store after claimant took charge thereof, which showed the transaction of sale to her, or the reception of her note for the purchase money. Plaintiffs also gave evidence that at the time of these transactions three other suits were pending against the Ryan Commission Company, and that its books showed a large indebtedness. The books of account kept by the claimant after the bill of sale to herself, exhibited circumstances unfavorable to the bona fides of the transaction.

On her behalf claimant testified that she knew nothing of the affairs of the Ryan Commission Company when the bill of sale was made to her; that she bought the property embraced therein in order to "make her living,” and intended to pay the note given for the purchase, price when it matured. She also claimed to be the owner of one hundred feet of ground in this city, but did not remember accurately what she paid for it, and although it had been in her name for several years, she had never paid any taxes thereon, for the reason that no bill had been presented to her. The court discarded the instructions requested by the parties and instructed the jury of its own motion, who thereafter returned a verdict that the property levied upon, at the time thereof, belonged to the Ryan Commission Company. A judgment in accordance was set aside on the ground that the verdict was against the weight of the evidence, from which ruling this appeal is taken by plaintiffs.

Trial courts have a large discretion in granting new trials for such reasons, the only limitation being that their discretion must not be abused. Parker v. Cassingham, 130 Mo. loc. cit. 350. It has been held that abuse of discretion in this respect should not be attributed to the trial court, if the whole evidence presents a substantial conflict. Bank v. Wood, 124 Mo. 72. In the case at bar while the testimony for plaintiffs afforded cogent evidence that the bill of sale to the claimant was a fraudulent contrivance for the use of the Ryan Commission Company (Hoffman v. Nolte, 127 Mo. 120), we are not willing to say that the evidence sustaining this theory was so convincing as to exclude every rational inference to the contrary. We do think the facts and circumstances set forth in this record go to the verge of the law on this subject. As they do not, however, exclude all doubt as to the substantial conflict, we give the ruling of the court below the benefit of that doubt. The ruling awarding a new trial will therefore be affirmed.

All concur.