40 Mo. App. 128 | Mo. Ct. App. | 1890
Lead Opinion
A trial in the circuit court resulted against the interpleader and she brings the case here for review.
Jacobs was engaged in the mercantile business and had become insolvent. He owed a number of wholesale merchants for goods purchased of them. He also owed Mrs. Goldman, the interpleader, a sum amounting to $1,429.61. In order to collect her debt she purchased of Jacobs his entire stock, inventoried at $2,319.25, cost price, for $1,723.48,. turning in, in .payment, her debt of $1,429.61 and paying him in cash $293.87. The plaintiff Meyberg brought suit by attachment against Jacobs and attached the goods which had
I: At the opening of the trial, before the testimony began, “the court, upon inquiry of parties, ruled that the burden of proof, under the pleadings, was upon interpleader to show, prima facie, the ownership of the goods attached.” As the sale and transfer of the possession of the goods to the interpleader, was admitted by plaintiff’s answer to the interplea, thus admitting interpleader to have been in possession claiming ownership, it may be conceded that the court’s ruling was erroneous, as under such state of the case interpleader was prima facie the owner, and her title could only be overthrown by proof of fraud; such proof to-be made by the party making the charge. But, notwithstanding this, did the ruling stated work any harm to interpleader. The cause-was tried with the aid of a jury and no instruction was given them asserting the proposition stated in the ruling. The evidence was submitted to them without guide as to the burden of proof, and they passed upon it without prejudice in that regard. Interpleader might, if she had so desired, or thought the jury needed instruction on that point, have asked a suitable instruction. This was not done, and we are not able to discover what harm could result from a mere direction given to the attorneys at the beginning of the trial. No evidence offered by interpleader was excluded; it does not appear which party opened and closed the case to the jury, and the action of the court was practically only directing the order of testimony, a matter largely in its discretion.
II. The question put to interpleader’s husband, a witness in the cause, and who transacted .all the business, as to what he told Mr. Walker about this not
Exception was taken to the action of the court in admitting a number of judgments of other creditors of Jacobs. The evidence was properly admitted, as it was an aid to plaintiff’s case to show there were creditors; and the judgments, while not binding upon those who are strangers to them, yet are proper evidence to establish the existence of debts owing by the parties against whom they are rendered. The point made that these judgments in favor of third parties should not have been entered until after the interplea in this cause was tried is nob tenable. If the point was good under any circumstances. (which we do not concede) it would not have availed interpleader in this cause, the object of the testimony being to show the indebtedness of Jacobs.
We think it was competent to show, under the circumstances surrounding this case, as it has been developed by the testimony, that a portion of the goods transferred to interpleader by Jacobs were the goods sold to him by the creditors in the attachment suits. It was a circumstance properly admissible as tending to show fraud on the part of Jacobs. And notwithstanding that fraud alone, on the part of Jacobs, would not defeat interpleader’s title; yet such fraud on his part is a part of the case to establish, and, if shown to have been participated in by the interpleader, completes the case. The evidence was admissible, therefore, as tending to show the design of Jacobs, even though, standing alone, it did not connect interpleader. Desberger v. Harrington, 28 Mo. App. 632; Singer v. Goldenberg, 17 Mo. App. 549; Holmes v. Braidwood, 82 Mo. 610.
It is next objected that the plaintiff’s answer to the interplea fails to allege any indebtedness to plaintiff. This was rendered unnecessary by the allegations of the interplea admitting plaintiff was a creditor.
“One creditor of a failing debtor is not bound to take care of another. It cannot be said that one is defrauded by the payment of another. In such cases if the assets are not large enough to pay all, somebody must suffer. It is a race in which it is impossible for everyone to be the foremost. He who has the advantage, whether he gets it by the preference of the debtor or by his own superior vigilance, or by both causes combined, is entitled to what he wins, provided he takes no more than his honest due. To pay a creditor his just debt in law, at a fair valuation, is no more a fraud upon other creditors than to pay him in bank notes or silver dollars. Neither is it any worse or more fraudulent for a creditor to secure himself by taking a conveyance, than it would be to enter up judgment. He gets no greater advantage by the former means than by the latter. The notion of the defendants in error seems to be that the creditor of an insolvent, man cannot avoid the imputation of fraud in any way except by cheating himself.”
While a creditor may thus lawfully seek and obtain a preference from his insolvent debtor over his fellow
We think the judgment should be affirmed, and it is so ordered.
Rehearing
ON EEHEARING-.
On the original consideration of this cause we did not pass upon interpleader’s objections to instructions given for plaintiff, for the reason that we did not consider that exceptions had been saved by the action of the trial court. We are now satisfied that the bill of exceptions, as set forth in appellant’s printed abstract, sufficiently stated an exception to the action of the trial court. Elsner v. Supreme Lodge, 98 Mo. 640. It shows the objections to the. instructions were made after they had been passed upon, and was not a mere objection, in the first instance, to them being given.
The complaint as to the instructions is confined in appellant’s brief on rehearing to numbers 4 and 8. Number 4 is as follows : “4. The court declares the law to be that every transfer or sale of goods or property, made with the intent or purpose to hinder or delay or defraud creditors or any creditor of a just debt, is utterly void as to creditors. If, therefore,' the jury believe from the evidence that J. Jacobs, in selling his stock of goods to Goldman, intended to defraud or to hinder or to delay any of his creditors, and that Goldman knowing, or having reasonable grounds to believe, that such was the intent or purpose of said
Instruction number 8 is the one usually given in a case where a question of fraud is to be determined; and taken in connection with the other instructions, to which it refers, is not subject to the criticism made upon it by counsel.
On account of the evident earnestness and sincerity of counsel we have again considered the cause as originally presented, but after such consideration feel constrained to adhere to what was said in the original opinion. The judgment is affirmed.