40 Mo. 591 | Mo. | 1867
delivered the opinion of the court.
The facts in this case bear a very intimate relation to those in the case of Potter v. Stevens, decided at the present term. Stevens was summoned as a garnishee in the attachment suit of Potter et al. v. McDowell, instituted on the 7th day of April, 1858. In his answer to the interrogatories propounded to him, and which were the usual ones in such cases, he denied any indebtedness to the defendant McDowell, as well as the possession of any property or effects belonging to him. It is to be noted that there were two answers filed by Ste
In the first, after stating that he had executed and delivered to John McDowell seven negotiable promissory notes on the 31st day of March, 1858, two for the sum of $4,450 each, due and payable two and three years after date respectively; and, describing the other five notes, he says, “ since which time he has not seen them, or any one of them; and the said Stevens says that he does not know whether the said notes, or any one of them, were, at the time he was garnished as aforesaid, or since said time, in the possession or under the control of the said John McDowell.” The garnishment was served April 10, 1858.
In the second amended answer, after reciting the execution and delivery of the same notes to John McDowell, he says that he was informed, and believed, and so averred the fact to be, “ that the said John McDowell, prior to the time he was garnished as aforesaid, assigned by endorsement and delivered the said two notes (the first two mentioned) to George McDowell for value received, and that the garnishee duly paid said notes at maturity as ho was bound to do,” &c.
There was a denial of the answer, and at the trial upon the issues thus presented there was a verdict and judgment for the defendant. This judgment is sought to be reversed by an appeal to this court.
It should be stated in the outset, that whilst the truth of the answer as to all of the notes mentioned had been put in issue by the reply of the plaintiffs, yet they only claimed at the trial to charge Stevens upon the two notes alleged to have been transferred by assignment to George McDowell. These two notes constituted no part of the consideration for the deed to the real estate known as the St. Ange property in the city of St. Louis. This property was the subject of litigation between John C. Potter and this defendant, heretofore referred to. These notes, amounting together to the sum of $9,000, were alleged to be the consideration for other
The defendant Stevens assumes in his answer to settle the questioñ of his liability to pay these notes after the service of the garnishment upon him. A prudent man under such circumstances, instead of deciding which of the parties claiming the benefit of these notes were really entitled to it, would have asked the protection of the law. Having elected to pay them to George McDowell, he has placed it beyond the power of the court to protect him.
The facts in this case are so numerous, and covering such a variety of transactions, as to make it impracticable to comment upon them fully and for the purpose of showing the conclusions to which they lead. Taken altogether, they disclose on the part of all these men a deliberate purpose to aid and assist in carrying out a fraudulent design, which seems to be apparent and incapable of concealment throughout. That this defendant, who, according to his own statement, was not worth more than the total amount of the notes which he executed to John McDowell, should, without any special inducement moving him thereto, encumber himself with debts in the purchase of this property, is exceedingly improbable, to say the least of it. That he, a farmer, living in St. Louis county, should suddenly, and without assigning any special reason therefor, conceive the idea of buying
This case was tried by the court sitting as a jury. It would only be necessary to notice the declarations of law, given or refused, for the purpose of ascertaining the theory upon which the finding was made. We conclude from an examination of the whole case that it was not supported by the evidence. Stevens cannot escape his liability upon the ground that he has paid these notes in full to George McDowell even if such a statement could be for a moment believed. He cannot be permitted to set up the fraud to protect him, and his liability to the plaintiffs in this proceeding is but the legitimate result of his own wrong doing.
The other judges concurring, the judgment will be reversed and the cause remanded.