| Mo. | Apr 15, 1888
The Bank of Tipton, defendant in 'error, instituted an attachment suit in the Moniteau ■county circuit court against Cochel & Bechtel, who were merchants .engaged in the sale of hardware in the town ■of Tipton. The writ of attachment was levied upon a stock of goods as belonging to them. On the same day said writ was levied, viz., the third of January, 1885, .and a short time before it was issued and levied, an assignment, executed by said Cochel & Bechtel, conveying all their property to one Barrick, as assignee for the benefit of .all their creditors, was filed for record. In
The plaintiff bank in the' attachment suit filed an answer to the interplea denying the right of the assignee and alleging in substance that the assignment was made with the intent to hinder, delay, and defraud the creditors of said Cochel and Bechtel, and that the assignee, Barrick, was a party to said fraud and acting in the interest of said firm and to aid them in their fraudulent purpose ; that said assignment was made to him because of his insolvency and willingness to serve them; that their intention was to put the property in the hands of Barrick and secure it from execution and attachment, and use the assignment as a means of coercing their creditors into a compromise, and that said assignment passed no title to the property, either to Barrick or to interpleader, Hazell, as his successor. The replication to this answer denied all frauds, and set up that said bank had full knowledge of the financial condition of said firm and of their intention to make said assignment, and that by reason of its representations made to other-creditors of the solvency of said firm and their good faith in making said assignment, the bank was estopped from contesting its validity.
The issue of fraud thus made up was tried before a jury, and a verdict returned in favor of the plaintiff bank in the attachment suit, upon which judgment was rendered and from which Hazel 1, the interpleader, has appealed to this court, and among other grounds of error, alleges that the court erred in holding that, under the issues as made by the pleadings, thé plaintiff bank in the attachment suit had the right to open and close the case, both in the introduction of evidence and in the-
Nor do we see any just ground of complaint to the action of the court in allowing witnesses Reavis and McClay to- detail a conversation had with Cochel & Bechtel a short time before the assignment was made, in which Cochel gave as a reason-for wanting to make an assignment that he could then get a better compromise with his creditors, and that he wanted to make it to get a better settlement with his creditors ; nor in allowing a conversation to 'be detailed, had with Cochel & Bechtel in the presence of Barrick, the assignee, the day after the assignment was made, at a meeting of the creditors, held for the purpose of effecting a compromise. The presence of Barrick, the assignee, at this conversation made what was then said admissible.
It is also objected that the court erred in excluding the deposition of one Elliott, to the effect that, on January 1 and 2, 1885, as the representative of certain creditors, he asked the cashier of the Bank of Tipton for his opinion as to the financial condition of Cochel &' Bechtel, and was told that they, in his judgment, were solvent ; that they owed the bank two thousand dollars, for which the bank'held no security, but they were not uneasy; that,' in his judgment, the firm was worth four or five thousand dollars clear of the world or; above their exemptions. In view of the fact in evidence that Cochel & Bechtel had made a showing or representation to the officers of the bank to the effect that they had several thousand dollars of assets over and above their liabilities, we are unable to perceive the relevancy of this evidence offered.
“1. If the jury believe, from the evidence, that the assignment of Cochel & Bechtel to Barrick was made by Cochel & Bechtel for the purpose and with the intent of hindering, delaying, or defrauding any of their creditors, and that said Barrick had notice thereof, then said assignment was fraudulent, and the finding of the jury must be for the defendant.”
Conceding this contention to be well founded, the interpleader, under the ruling made in the case of Holmes v. Braidwood, supra, is not in a position to take advantage of it, since the same vice of which he complains in the above instruction is to be found in the eighth and ninth instructions given by the court at his own instance.
The action of the court in refusing instructions, asked by the interpleader, numbered six, ten, eleven, twelve, thirteen, sixteen, and twenty, is also complained of. Among those refused is the following:
“Although the jury may believe that the making of the assignment had the effect of hindering or delaying, and was made with the intent and purpose to hinder or delay, the creditors of said Cochel & Bechtel, or any one or more of them ; yet, if the only hindrance and delay intended was such as would be incidental to and a result of ‘ carrying out the said deed of assignment, it cannot be fraudulent because of the effect and intent above stated.”
ín refusing' this instruction we are of the opinion that the court committed error. See, in addition to the cases last above cited, the following: Potter v. McDowell, 31 Mo. 75" court="Mo." date_filed="1860-10-15" href="https://app.midpage.ai/document/lane-v-ewing-8000930?utm_source=webapp" opinion_id="8000930">31 Mo. 75; Singer v. Goldenburg, 17 Mo. App. 550. The right of a party in embarrassed circumstances to make an assignment of all of his property for the
The sixth and twentieth refused instructions were in the nature of a demurrer to the evidence, and were properly refused, as there was some evidence, though slight, justifying the submission of the good faith of the parties to the assignment. The other refused instructions were substantially embraced in others that were given and were for that reason properly refused.'
As the error noted is sufficient to reverse the judgment, it is unnecessary to notice the objections made to the action of the court in refusing to submit special issues to the jury, inasmuch as the present state of the law on that subject takes that question out of the case.
Judgment reversed and cause remanded,