56 Mo. App. 245 | Mo. Ct. App. | 1894
— This is an action of trespass for the seizure and sale, under attachment, of a stock of merchandise, 'the property of the firm of Culberson & Hall. The cause of action was assigned by Culberson & Hall to plaintiffs, defendants in the attachment suit. On trial below.plaintiffs obtained judgment and defendants appeal.
The case was heretofore before this court and will be found reported in 45 Mo. App. 38, where a statement of the origin and general nature of the transaction preceding the commencement of the present action, will be found. When the cause was remanded there was an amiendment of pleadings all ’round and a retrial has developed some additional and some materially different theories from those advanced at the first trial.
Defendants introduced no evidence and submitted but one instruction, that being a demurrer to the evidence. The evidence showed the stock of goods sold by the plaintiffs to Culberson & Hall to have been worth more than $3,000. That the claim upon which. these defendants instituted their attachment was for $742, the whole stock being seized. It further appeared that on a trial of the plea in abatement the attachment was dissolved. Culb.erson & Hall paid for the stock $300 in cash and giving.one note for $200, due in thirty days and one note for $2,789.77, due in twelve equal monthly installments.
The question whether these plaintiffs made the sale to Culberson & Hall with intent to hinder, delay or defraud their creditors was submitted to the jury under instructions. This is complained of by defendants; they, in effect, contending that if the effect of the sale was to hinder and delay creditors, then it was a fraud upon them, regardless of the question of intent, and
Defendants’ answer alleges a conspiracy between these plaintiffs and Culberson & Hall for the purpose •of hindering, delaying and defrauding the creditors of these plaintiffs. And that “to carry out said fraudulent intent the said Grens and Tiede made a pretended •sale of the goods, wares and merchandise” in question. ‘The answer then proceeds to state in detail the general plan of the conspiracy, thus alleged to have been -entered into, whereby the creditors of these plaintiffs -Were to be cheated, defrauded, hindered or delayed. A reply was filed by plaintiffs which tendered an issue on ■these allegations. The cause was thus thrown under the statute of fraudulent conveyances, section 5170, Revised Statutes, 1889, and the question of intent was ■properly made to form a part of the instructions given. It is true e'nough that where an act is such as to inevitably defraud, hinder or delay creditors, he who •commits it would be held or presumed, under this •statute, to have intended the inevitable consequence of
But defendants submitted an instruction in the-nature of a demurrer to the evidence which was. refused, which if given would have declared, as a matter of law, that the sale made by these plaintiffs was fraudulent and void. This demurrer amounted to a declaration that there was but one conclusion to be drawn from the evidence and as such it was altogether improper. Conceding plaintiffs to have been insolvent at the time of the sale, yet the testimony shows that-the object.in selling was for the purpose of paying their creditors. The sale was partly for cash and the balance on credit evidenced by notes, one payable in. thirty days, the other in twelve equal monthly installments, the last installment falling due in one year. The cash payment and the notes, together with $800' .worth of book accounts, were turned over to an attorney with directions to pay out the cash to creditors and to collect the accounts and the monthly installments of the note as well as also the smaller note and pay over to creditors. The law is, that whenever, in-good faith, a sale is made, even by an insolvent, for the purpose of paying creditors, the sale is valid. Singer v. Goldenberg, 17 Mo. App. 565-568; Knapp v. Joy, 9 Mo. App. 47. It is true that here there was credit given. But it is
We are, however, cited to the ease of Seger v. Thomas, 107 Mo. 635, as, in effect, overruling Dougherty v. Cooper. The opinion does not profess to do so, and since we consider the case at bar entirely distinguishable from Seger v. Thomas, we need to do no more-than state the point of difference. In that case there was a credit of one year evidenced by the negotiable note of the purchaser for the surplus over and above-the amount of his debt, which was kept by the debtors, thus “putting it in the power of the members of the firm to dispose of the .note, which was negotiable, to-an innocent purchaser, and thus effectually deprive the creditors of this surplus absolutely,” the debtor being allowed, as the. court proceeds to illustrate by a. quotation from a case in the supreme court of Texas, to place that portion of the property beyond the reach, of other creditors and leave the vendor free to deal with it as his own. In the case before us the vendors,—
But if we are wrong in the foregoing, there yet appears an insurmountable barrier to such defense on the part of the defendants. The sale per se was a valid ■sale — a valid transfer of the title to Culberson & Hall. It was only void as to creditors and purchasers — it was ■•subject to be avoided by them. By the word creditors, however, is not meant general creditors, or creditors •at large, as they are sometimes designated. Such a ■creditor has no right to interfere with, or complain of, the disposition of the debtor’s property. Martin v. Michael, 23 Mo. 50; Thias v. Siener, 103 Mo. 323; Spitz v. Kerfoot, 42 Mo. App. 77; Crim. v. Walker, 79 Mo. 335. In the case first cited it was held that an •attaching creditor was not such an one as could question the sale — that he was no more, before judgment, than an ordinary creditor. Since that case, the statute has been altered so as to allow this privilege to any .attaching creditor. Revised Statutes, 1889, section
Defendants did, however, as plaintiffs in that ease, obtain a judgment against the plaintiffs here for their claim; and did thereby become judgment’ creditors. But it must be borne in mind that before they became judgment creditors all of the wrong had been perpetrated and all the damage, here sued for, had accrued. The goods had been seized — four or five times in value more than the debt sued for. The sale had taken place under order of court, and the property sacrificed. The tort then, was committed and the injury inflicted without justification or excuse, since the grounds assigned for it and which permitted it to be done, were false as was determined by the trial of the plea in abatement. The fact that these defendants
Matters in the nature of a settlement are set up by defendants. The facts in this regard are, that the levy of the attachment was made on the goods then in the hands of Culberson & Hall, and that a small portion of the goods so seized (some $240, in value) were not in the stock when owned by these plaintiffs, but was stock purchased by Culberson & Hall after the ■sale to them by these plaintiffs. As subsequent actions showed, it was property not intended to be levied upon. It was not in dispute. There was no contention over it. It was simply inadvertently attached by being in the storehouse with the stock claimed by these defendants to have been fraudulently sold. ■Culberson & Hall made claim for these goods to these •defendants, the specification in the claim showing that they were not a part of the property in dispute. Another claim was made for $70, on account of matters wholly disconnected from the contest over the Hens & Tiede stock, or its sale to Culberson & Hall. 'This claim included house rent; interest on an amount
Much of the authority and argument of defendants-on this point is really inapplicable; .it is upon that branch of the law concerning splitting a cause of action by instituting separate actions. The law looks with favor upon the settlement of disputes without a resort to litigation. It will not compel one to forego the settlement of a portion of his demand on pain of losing the remainder. On a question of settlement there are no artificial mysteries or technical pitfalls. The question to determine is one of mere facts, whether there-has been a settlement of the thing in litigation. On. the other hand, the law looks with disfavor upon, harassing a defendant with many actions on one cause-of action. The two questions are wholly different.
The defendants set up in bar of this suit that-plaintiffs had brought an action on the- attachment, bond and recovered thereon; which action, it is alleged, involved a part of the wrongs complained of in this-suit. There was nothing tending to prove this, defendants introducing' no evidence. Nor was it-admitted-in the reply. The reply was, that the cause-of action referred to in the answer was one exclusively
Upon the whole case, after considering all the objections made, we are clear that the judgment should be ariirmed.