Graham Paper Co. v. St. Joseph Times Printing & Publishing Co.

79 Mo. App. 504 | Mo. Ct. App. | 1899

ELLISON, J.

This is an action by attachment in which personal property was attached as being that of defendant. The defendant made default • and the inter-pleader filed her interplea claiming the property under a chattel mortgage executed by defendant to her mother, Mrs. L. A. Burgess, of Omaha, Nebraska, to secure a note given by defendant for $2,000, the note having been assigned by the latter to interpleader. The judgment below was for interpleader.

Plaintiff contests the validity of the note and mortgage, claiming that they were executed to defraud creditors, and that interpleader knew it through her agent.

Interpleader’s claim is that her husband, George C. Crowther, was the president of the defendant publishing company and that he borrowed the money represented by the note and mortgage of her for the publishing company, and being president of the company he did not want her name to appear as loaning the money. He therefore obtained the consent of interpleader’s mother to use her name in the note and mortgage, she in a day or two after the papers were executed, assigning the note to interpleader.

conveyances: evidence: ¿onceaiment: jury question. Plaintiff asked several instructions which submitteld the hypotheses of the money being borrowed for a fraudulent purpose or use, and of George C. Orowther’s knowing this and being interpleader’s agent in the transaction, she would be chargeable with his knowledge. These were refused. As these in- . , . structions state correct propositions of law, x x ' we assume that they were refused for the reason that in the opinion of the trial court there was no sufficient evidence upon which to base them. And in this there was manifestly error committed which necessarily must have materially affected plaintiff’s case. The debt claimed had its inception in an effort at concealment; the note and mortgage evidencing the debt being taken in the name of interpleader’s mother at the suggestion of her husband. The note was then secretly assigned to interpleader. That this was intended to be concealed is evidenced by the fact that afterwards the property was advertised for sale by Crowther in the mother’s name and she brought down from Omaha to attend the sale. And it likewise appears that a replevin suit becoming necessary, he instituted one in her name. It does not appear whether the usual affidavit was attached to the claim in that case. But whether there was or not, the two acts certainly establish a continuation of the concealment and the keeping up of a false claim of ownership in the mother. The reason assigned for this, as before stated, was that nothing wrong was intended but that Orowther being president of the defendant company he did not want his wife’s name mixed in it as a loaner of the money to the company. Yet he was willing that his wife’s mother should be connected with it, which still made of it the very matter he wanted to avoid, viz.: a family affair; unless he thought the mother, being a nonresident, would not be known to the creditors of the printing company. The explanation of the extraordinary course taken amounts to this, that in the effort to avoid the appearance of evil, evil was committed, in that, according to plaintiff’s claim, they were thus led into this attachment, by the ajopearance of record, and in the other ways mentioned, of a claim of indebtedness to a party, which did not exist, thus giving the appearance to one investigating the matter, of being without consideration and fraudulent. And the record does not show that anything different was made to appear until after the attachment was levied.

jüryquestroi. Interpleader was a witness at the trial, and she having previously given her deposition it was introduced by plaintiff as an admission and for the purpose of contradiction. A comparison of her testimony as given in the deposition and the trial, develops a condition of affairs relative to the entire transaction which certainly entitled plaintiff to go to the jury on the question of the bona fides of the debt and of Orowther’s agency for her. The two are not at all in harmony. She explained this on the stand by the statement that she was so frightened, excited and confused when giving her deposition that she did not know what she was saying.

—: agency of the husband: jury question. Coming to the question of Crowther’s agency for Mrs. Crowther, the evidence well-nigh conclusively shows he was her agent. The full face of the whole case, as disclosed by the record, makes this apparent. In the first place she, in her deposition, says he was. Her testimony at the trial, barring a formal denial of his being her “general” agent on being recalled, amounts to the same thing. He transacted all the business for her in the loan and taking the mortgage and note. He attended to every detail except the signing of her name to a transfer of some building and loan stock. He brought the replevin suit, and advertised the property for sale, assuming the responsibility to omit some of it in the first advertisement. The fact seems clear that she knew nothing about the business and did nothing about it except as he suggested and directed. We do not mean to say that the jury should have been told, in terms, to find that he was her agent, but when it is remembered that plaintiff’s instructions on the question of agency were refused, it becomes apparent that its appeal is well taken.

, , -: dual agency wife’l notice°of fraud. But it is urged here that if he was the agent of the defendant company in borrowing and of his wife in lending his knowledge of the fraud intended by his company will not be imputed to her, since it would be to his interest not to tell her, and thus the presumption of law that an agent does tell his principal, is rebutted. To this, we cite the case of Smith v. Farrell, 66 Mo. App. 12, 13, as a full answer. That case and this, on the questions of agency and of the application of the rules of law governing such questions, are substantially alike. There the dual agent was the general agent of both parties. While here Crowther is the general agent of the defendant printing company and perhaps only the special agent of interpleader. But notice to a special agent of any matter connected with the transaction in which he is acting, is just as binding on the principal as if he.were a general agent. He was a dual agent, each principal knowing he was the agent of the other, and each is bound the same as if they had been represented by different agents. Smith v. Farrell, 66 Mo. App. 8.

In our opinion plaintiff’s refused instructions designated as Q, R, S, T and U, should have been given.

defendant :°* p?eáCdeí? m“r' The defendant company, by the default made, admite the fraud charged. It is therefore only necessary to connect interpleader with it, and this may be done by showing knowledge by herself alone, or by her agent alone, or by both. In investigating questions of this nature, the law permits more latitude of examination of the parties charged than would otherwise be allowed. Reversed and remanded.

All concur.