Rindskoff, Stern, Lauer & Co. v. Rogers, 34 Mo. App. 126

34 Mo. App. 126 | Mo. Ct. App. | 1889

Thompson, J.,

delivered the opinion of the court.

The plaintiffs, being creditors of the defendant Rogers, levied an attachment upon a stock of goods at Southwest City, in this state, as his property. The respondent Roseberry thereupon interpleaded under the statute (R. S., sec. 449), claiming that he had bought the stock of goods of Rogers for the sum of $4,785.73, its invoice cost, paying to Rogers $1,785.73 in money and giving to him two promissory notes of one thousand dollars each, and also giving to the brother of Rogers two non-negotiable notes for five hundred dollars each. The plaintiffs filed an answer to the interplea setting up that the sale from Rogers to the interpleader was a sham sale, concocted with the aid of a third party named McIntosh, for the purpose'of assisting Rogers in defrauding his creditors, under an arrangement that the gains of the fraud should be divided between Rogers and the interpleader. To this answer the interpleader filed a reply which consisted of a general denial.

On the issue thus made up there was a trial before a jury. The interpleader gave evidence tending to show that the sale was in good faith, and that he had made the cash payment of $1,785.73 to Rogers, as alleged, and had given the notes above described, which notes had not been paid. The plaintiffs gave evidence tending to support the allegations of their answer, that the sale was a sham concocted between the defendant and the interpleader with the aid of McIntosh to assist the defendant in cheating his creditors.

The court gave one instruction of its own motion, which concludes by advising the jury that if they find for the interpleader he is entitled to recover the whole <of the proceeds of the goods attached. But immediately following this the court gave three successive instructions which advised the jury that, in the event they should find for the interpleader, the measure of his recovery would be the amount of money which he actually paid to Rogers for the goods deducting the money realized for goods sold, and allowing six per cent, interest from the date of the seizure of the goods. Two of these instructions were given by the court of its own motion, and the third was given at the request of the interpleader. The jury thereupon returned the following verdict: “We, the jury, find the issues in favor of the interpleader, John Roseberry, for the recovery of the sum of $1785 out of the proceeds of the sale of the goods attached.” Of this verdict the inter-pleader remitted seventy-seven dollars (for what reason we do not understand, possibly to cover the error of the court’s instruction in regard to interest), and the •court entered a judgment in favor of the interpleader for the residue, $1708, to be paid to the interpleader out of the proceeds of the sale of the goods, and also adjudged the costs in favor of the interpleader and against the plaintiffs.

The principal error assigned is that the court could not advise the jury to return a verdict for an amount in money. This objection is clearly well taken. In an issue made up on an interplea in an attachment case, the only question for trial is the right of property, and the only issue which can be submitted to the jury is whether the property attached was the property of the interpleader or not. Mills v. Thompson, 61 Mo. 417; Hewson v. Tootle, 72 Mo. 682; Nolan v. Deutch, 23 Mo. App. 1. An instruction authorizing a verdict for money, although it be for the full amount of the proceeds of the attached property (as in Hewson v. Tootle, supra), authorizes a verdict which is not responsive to the issue and which will not support a judgment. If in such a •case the property has been sold, the verdict must none -the less respond merely to the question whether the attached property belonged to the interpleader or not; bat the court, in rendering the judgment, will apply the verdict to the fund and if it be in favor of the inter-pleader will adjudge the fund to him. Hewson v. Tootle, supra; Nolan v. Deutch, supra.

This is not controverted by the learned counsel for the interpleader; but they ask for an affirmance of the judgment on the ground that the error was an error in favor of the plaintiffs, and hence one of which they cannot complain. W e apprehend that this is not a case where the doctrine of error without injury can properly be applied. It rather falls within the principle laid down by the supreme court in Swartz v. Chappell, 19 Mo. 304, where it was held that if the trial court gives erroneous instructions, the supreme court will not review the •evidence in order to determine whether or not the judgment is for the right party on the facts. The issue was pointedly made by the evidence in this case whether this was a bona-fide purchase on the part of the inter-pleader, or whether it was a sham sale which he assisted in concocting; at least, whether he did not know, or have reasonable grounds to believe that the object of the defendant Rogers in making the sale was to cheat his creditors. In such a state of the evidence, an erroneous instruction which assists the jury to a compromise verdict not authorized by the principles of the law, cannot be regarded as harmless merely because it assists the jury to a verdict for a smaller amount than the interpleader might have recovered if the issue had been properly submitted to them. The trial court seems to have proceeded upon the theory that, in such a case, the court could direct an equitable apportionment protecting the interpleader in respect of the advance which he had really made, and subjecting the excess of the proceeds of the sale of the property above this advance to the demand of the attaching creditor. The statute does not contemplate such an apport ionment. It admits of no other construction than that which has been put upon it by the decisions above quoted, that the sole question is whether the party who interpleads, claiming the property, is entitled to it or no. The principle upon which the circuit court proceeded in this case involves a rescission of the sale, and a placing of the parties as far as possible in statu quo. Whether a court of equity could in such a case work out the rights of the parties in this manner, we need not inquire, — because the statute (R. S., sec. 449) does not admit of such equitable interposition, nor are the pleadings in this case framed with the view of claiming such relief.

The judgment will be reversed and the cause remanded.

All the judges concur.