35 Mo. 409 | Mo. | 1865
delivered the opinion of the court.
This suit was instituted in the Buchanan Court of Common Pleas upon a promissory note for the sum of $1,735.94,
The answer of the defendant alleges that on or about the 12th of December, 1860, about four months prior to the execution of the note, the defendant and Kelly entered into a partnership for the purpose of selling goods, wares, and merchandise, in the town of Rushville. That at the time of forming said partnership Kelly represented that his indebtedness did not exceed the sum of $1,200, whereas it amounted in fact to about six thousand. That about the date of the note an agent of the creditors of Kelly came to Rushville to secure the said indebtedness ; that on the night of his arrival Kelly, defendant, and plaintiff, met at the house of defendant, and it was then and there agreed between them that Kelly should make a sham sale of his interest in the goods to defendant, and that defendant would execute a note to Kelly which was to be immediately transferred to plaintiff, so that plaintiff could represent to said agent that Kelly had no property whatever and that it would be useless to sue him. That the transaction was the result of a combination between the three to defraud the creditors oE Kelly, and the note sued on was executed in pursuance thereof, and with the understanding that it was to be returned to the defendant. That shortly afterwards Kelly died, and after his death this suit was instituted.
Upon the trial of the issues so made, defendant offered to prove the facts stated in his answer; which was objected to by plaintiff, and the objection sustained. Judgment being rendered for plaintiff, defendant filed his motion for a new trial; which being overruled, he now appeals to this court. The only question presented for our considerations is, whether the matter set up in the answer constituted a good ground of defence; and this question we think has been definitely settled by this court in case of Hamilton v. Scull’s Adm’r, 25 Mo. 165. That was a suit commenced in the Probate Court of St. Louis county to establish a demand against decedent’s estate upon a note executed by the intestate to the plaintiff.
the judgment will be reversed and the cause remanded.