24 Mo. App. 154 | Mo. Ct. App. | 1887
This is a suit in attachment founded upon an affidavit alleging the usual statutory grounds, to which a plea in abatement was filed by the defendants, and a trial by a jury had, which resulted in a verdict and judgment for the defendants. The only issue and ground of attachment upon which any evidence was adduced at the trial was that the defendants were about fraudulently to convey or assign their property or effects so as to hinder or delay their creditors. Upon this there was testimony either. way, plaintiffs
“Kansas City, Mo,
“ Reinhart, L. & Oo., St. Louis, Mo.
“Dear Sirs : — A lawyer called on us to-day in regard to your bill. Now we wish to let you understand just what we intend to do in the matter. We offered you a note due in six months, which you refusód. We have a few hundred dollars invested in real estate here which we are offering for sale, and as soon as we sell your account will be paid, as it is on account of your bill that we are going to sell, although we will lose by selling. Now if another lawyer sets his foot into our place, or if we are dunned in this manner for your bill, we shall consider the account- squared.
“This is the last we shall write to you. Please understand that we can do no better than our best, and if you choose to try and bull-doze us into paying before we can you will most certainly lose by it.
“ Yours respectfully,
“ Grant & Elbert.”
Plaintiffs contena that this letter is not subject to any explanation by the writers, and that it, in connection with threats made, sustains subdivisions nine and ten of section 396, Revised Statutes, of the attachment law.
Plaintiffs offered instructions, which were refused, to the effect that, if from defendants’ letter and threats plaintiffs “had reasonable grounds to believe and did believe that defendants intended” to defraud them, then, in such case it did “not matter whether defendants intended to carry out their intentions as indicated or not,” and that if the statements and threats made by defendants to plaintiffs were such as to lead plaintiffs to believe a fraudulent disposition of the property was intended, and that if the defendants “threatened when the claim of plaintiffs was presented to them, that they would never pay the same unless the plaintiffs
The court of its own motion gave an instruction that it was “only necessary for plaintiffs to prove the truth of one of these two charges, and if you believe from the ■evidence in the truth of one of these allegations, then your verdict should be for the plaintiffs; but if you find from the evidence that neither of these charges are true, then your verdict should be for the defendants. It is not enough that plaintiffs may have sincerely believed that these charges were true. You must believe that one or both of these charges were in fact true at the suing out of the writ of attachment or your verdict should be for the defendants.”
There is no legal reason why the witnesses might not have given evidence in (Tract conflict with what they had written. What they wrote is proper evidence against them, and what they testify to is evidence for them, both to be weighed by the jury.
The instructions offered by plaintiffs were properly refused and that from the court of its own motion was properly given.
The question for the jury in such cases is, not what did plaintiffs believe or defendants threaten; but what was the fact. There is no estoppel in the case. Miller v. Anderson (19 Mo. App. 71), is not an authority in plaintiffs’ favor. I conceive it to be against their position. In the case of Exchange Bank v. Cooper (40 Mo. 169), the lower court, after instructing the jury upon the part of the plaintiff as to the question of whether the defendant was a resident or not, added of its own motion, “unless defendant had represented himself to plaintiff to be a non-resident.” The cashier of the bank, ■who was the chief witness for plaintiff, after testifying to certain admissions of defendant just previous to the
The judgment is affirmed.