77 Mo. App. 155 | Mo. Ct. App. | 1898
Louis Obert, one of the defendants, about July 1,1891, recovered a judgment against Louis Strube as principal and Peter Schick as indorser, on a promissory note for $250. From this judgment Strube and Schick appealed, giving an appeal bond, with Oscar C. Koehler as surety; this judgment on appeal was affirmed for $304.10; on November 23, 1891,
The answer of defendants set forth the above mentioned judgments, the issuance and levy of the execution, and averred that the trust deed was made by Strube for the purpose of hindering, delaying and defrauding his creditors, and that the mortgage was fraudulent and void. The reply put in issue the new matter set up in the answer. The issues were tried by a jury, who found for the defendants, and assessed the value of the property at the time of the trial to be $50 and assessed defendants’ damages at $150. A motion
The plaintiff read in evidence the deed of trust which was duly acknowledged and recorded, and the note secured thereby, and the appeal bond of Strube, Schick and Koehler; also offered evidence tending to show that Strube, a saloon keeper had been buying beer from Obert prior to May, 1891, at which date he quit and became a customer of the American Brewing Company, when Obert instituted the suits which resulted in the judgments above noted. The next day after the rendition of the $444.85 judgment, Henry Koehler, the president of the American Brewing Company, called at Strube’s place of business and arranged to meet him at the office of Mr. Muench, the attorney of the American Brewing Company, for the purpose of making the deed of trust; they met as per appointment on the same day and the deed of trust was made. Henry Koehler represented the American Brewing Company, and also claimed to represent Oscar C. Koehler, then absent from the city; neither Schick nor plaintiff Guntley were present at the execution of the deed of trust, nor does it appear when they were informed of the making of the deed. • The evidence was that the property would depreciate in value when in use; that Strube was permitted to retain and use the property in his business from the time the deed of trust was executed, until levied on by the sheriff, and that after it was replevied he continued to hold and use the property; that after the replevy the leasehold interest he had assigned and conveyed by the deed of trust was sold under the instrument and Strube moved, leaving a part of the replevied property, because, as he says, it was worn out and not worth moving. The evidence also was that the property at the time the levy was made was not worth over $120, and at the
The reasonable inference to be drawn from the rejected testimony is not preserved in the bill of exceptions is, that it was lacking in probative force, and was valueless. State v. Douglass, 81 Mo. loc. cit. 235; Bank v. Aull, 80 Mo. 199; Pleasant Hill v. Willis, 79 Mo. 275.
Instruction number 1 given for defendants by the court in substance told the jury that fraud was not to be presumed, but must be proven; still that it might be inferred from facts and circumstances in evidence, and if they found that the trust deed was given by Strube with the intention of hindering, delaying or defrauding Obert, and that the parties in whose favor the deed was made knew of such intent, and accepted it for the purpose of aiding Strube in carrying out his fraudulent purpose, they should find for defendants. The second instruction given for defendants is the same as the first in substance, with the addition, that if the jury found the facts constituting the fraud, they should find for defendants, although they might find that Strube was indebted to the American • Brewing Company, and that Schick had indorsed a note for him, and Koehler had become surety for him on an appeal bond. The appellant contends that as to Schick