Hook v. Craghead, 35 Mo. 380

Hook v. Craghead

35 Mo. 380 | Mo. | 1865

Bates, Judge,

delivered the opinion of the court.

Craghead sued Franklin by attachment and caused goods ■to be seized which were in the possession of Adair. Adair interpleaded, and claimed the goods by virtue of two mortgages executed by Franklin; Craghead answered to the in-terplea, that as to one of the mortgages ■ (which had been ■made to one Wise and by him assigned to Adair) that it had been paid by Adair with money furnished by Franklin for that purpose; and as to the other mortgage made by Franklin to Adair, that it was fraudulent, without consideration and in aid of an attempt on the part of Franklin to hinder, delay and defraud his creditors.

At the trial, evidence was given that after the maturity of *384the notes secured by the mortgages, Franklin for a time continued in possession of the goods and sold some of them in payment of his debts, and in one instance for money. And evidence was given tending to prove that these sales were made with the knowledge of Adair. And evidence was given that, in one instance, one Thomas, a creditor of Franklin, went to Adair to see about the matter, and that Adair stated that he had a mortgage on the goods, and told Thomas to get out of the store goods for the sum which Franklin owed him ; which Thomas did, and paid for them with Franklin’s note which he held.

At the trial many instructions were given, some of which were asked by the plaintiff, some were volunteered by the court, and all which the defendant asked were given. (By the plaintiff is here meant Adair, the interpleader, and by the defendant is meant Craghead.)

There was verdict and judgment for the plaintiff, and defendant brought up the case.

In this court, complaint is made of one of the instructions given at the instance of the plaintiff, as follows :

“ Although the jury may believe from the evidence that Adair sold or delivered to John P. Thomas goods belonging to the stock mortgaged, and took in the note of Franklin held by Thomas, such sale or delivery to Thomas does not render the mortgage fraudulent; on the contrary, Adai'r had a right to release any part of the goods for the benefit of any other creditor of Franklin, without impairing the validity of the mortgage as to the balance of the goods.”

This instruction is predicated upon a state of case in nowise supported by the evidence. The evidence on the subject of sales of the goods, showed that the sales were made by Franklin, and not by Adair, as supposed by the instruction. The instruction ought not to have been given. But as the other instructions put the case to the jury as favorably for the defendant as the evidence would warrant, and as it is apparent the obnoxious instruction could do the defendant no harm — and furthermore, as there had been two mistrials *385before the verdict was recovered, we think the ends of substantial justice will be better subserved by sustaining thap disturbing it.

Judgment affirmed.

Judges Bay and Dryden concur.