11 Mo. App. 306 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This case has been here before. The plaintiff, Celia M. Franklin, claims that defendants unlawfully seized and carried away certain personal property belonging to her, and converted the same to their own use. The defendants, after a general denial, pleaded that they caused the goods to be taken in attachment as the property of Carabin & Co., who were indebted to defendants. The ground of the attachment was a fraudulent conveyance by Carabin & Co. The issue on the plea in abatement in the attachment
When the case was here before, we held the sale from Carabin & Co. to Mrs. Franklin void as to creditors, for want of proper delivery, and that it was not validated by the removal of the goods the night before the Carabin failure. As to the goods mixed with those alleged to have been bought from Carabin & Co., we held that, as they had been, by plaintiff’s fault, mixed with those of the execution creditor, the burden was on plaintiff to make the separation.
The original sale of Carabin & Co. to plaintiff was clearly void as to the creditors of that firm, and so we have held. All the goods levied upon at the suit of defendants, except as to some small amount, less than $100 worth, purchased of a Detroit house by plaintiff, were, either these goods, or those goods which, on plaintiff’s theory of the case, had been purchased by her through Carabin & Co. to replace those sold, and with the proceeds of those goods.
There was evidence in the case from which, if the jury had found that Mrs. Franklin bought these identical goods in question from Carabin & Co., the verdict ought not to
•2. We do not set out and comment upon the instructions given and refused, as they were quite long. But the following instruction was asked by defendants, and refused ; and we think that it was warranted by the evidence, and is not replaced by any instruction given ; it should not have been refused: —
If the jury find from the evidence that the goods, or any of them, the value of which is sued for in this case, were ordered by the firm of J. J. Carabin & Co. in their own name, and were invoiced or billed and sent to said firm, and were by said J. J. Carabin & Co. charged on its books to the said Celia M. Franklin, then Preston, with her knowledge and consent; that as she made sales of said goods she turned over the proceeds of the same, or'a statement of the amount of the same, to said firm, and was credited with the same on the books of said firm, and that she finally settled with said firm, on the basis of the entries made in the books of said firm in respect of such transactions, then they are instructed that from these facts they may find that all of the goods so purchased, and the value of which is sued for in this case, were purchased of J. J. Carabin & Co.”
The judgment is reversed and the cause remanded.