44 Mo. 238 | Mo. | 1869
delivered the opinion o tue court.
This suit was brought upon a bond given by the defendants, as attaching creditors of one Pierce, upon property claimed by T. D. Heed under the provisions of “an act concerning the duties of sheriff and marshal, in the county of St. Louis, in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons,” approved March 3, 1855 (Sess. Acts 1855, p. 464). Pierce was about to remove to the State of Louisiana, and on the 8th day of April, 1868, sold his household furniture to Heed for $2,000, he agreeing to pay $1,000 down, and give his note for the balance. He paid Pierce $100 down, and took the bill of the furniture, and the next morning paid $900, and gave his note. It was a part of the agreement that the furniture should remain in the house until it could be sold, as Heed bought it on speculation. On the afternoon of the 9th, the property was attached and the bond given.
The principal questions involved in the appeal arise from the instructions to the jury given and refused. The following were given by the court, on its own motion, and excepted to by the defendants : “ The jury are instructed that if the said Pierce did sell the property in question with intent to hinder, delay, or defraud his creditors, said Heed could not be prejudiced thereby unless he had, at or previous to the sale, knowledge of such intent or such information as to put a man of ordinary prudence upon inquiry in regard to it.” “ If the jury believe from the evidence that the said Thomas D. Heed purchased the property in question, but that he did not within a reasonable time take possession thereof, regard being had to the situation of the property, then the jury will find for the defendant.” “If the jury believe from the evidence that said Thomas D. Heed purchased the property in question in good faith, for a valuable consideration,' with a view to take possession thereof as soon as practicable, regard being had to the situation of the^property, but, before he had had an opportunity to take possession thereof, the same was levied on and taken away, then the jury will find for the plaintiff, and assess the damages at the value of the property — not, however, to exceed the sum of four thousand dollars, together with interest from May 14,1868, at the rate of six per cent, per annum.”
From an examination of the evidence, as spread out in the bill of exceptions, I am satisfied that these instructions contain a correct statement of the law as applied to it. Special objection is taken to the phrase “ with a view to take possession thereof as soon as practicable, regard being had to the situation of the property, but, before he had an opportunity,” etc., as not being founded upon evidence, and containing a suggestion to the jury calculated to mislead. It was clearly established and uncontradicted that the purchaser of the furniture was to have the use of the house for ten days, for the purpose of selling it at auction or otherwise; that the seller was expecting to leave in a day or two, giving him sole possession of the house and furniture; and that
The defendants asked the court to give several instructions, elaborately constructed upon their view of the evidence ; the first of which was given, and the rest refused. The one given it is not necessary to consider. We have examined the rest, and find them either defective or simply embracing the law as already declared. If an instruction is simply a reiteration, and embraces no new proposition applicable to the case, the party has no right to demand it. The court should simplify its directions to the jury, and ought not to embarrass them by elaborations of the same point in different ways.
Most of these instructions make the statutory requirement of delivery more stringent than the statute itself. The revision of
In describing the purchase and circumstances attending it, the plaintiff, in testifying, stated that “Mr. Pierce told me that he expected to leave daily, and was very anxious to get away ;” to the admission of which testimony the defendants excepted, without stating the grounds of their objection. Though ive ought not to take notice of such objections unless their reason be given (Rosenheim v. Am. Ins. Co., 33 Mo. 230), yet it may have been sufficiently obvious in this case. This statement of Mr. Pierce to the purchaser was so clearly a part of the transaction — so material, as.bearing upon its good faith on the part of the plaintiff, as explaining not only the occasion of the purchase, but also as bearing upon the question of reasonable time- — that it would doubtless have been received, had the objection been ever so formal. The testimony bears upon both the question of actual fraud and the question of delivery. Did Heed buy the property for the use of the vendor, to enable him to hold it as against his creditors ? If so, it was fraudulent, without regard to the time of delivery, though the time of delivery would bear upon the question of fraud. Did the vendor agree to leave the house forthwith, as soon as he could get away ? for that is the natural injport of “expecting to leave daily.” If such wms the agreement, and the purchaser should wait a day for him to leave before removing the goods, reasonable time would not have elapsed.
The defects are wholly matters of form, and are noticed too late. No one is injured by them. Heed is the only person who has any interest in the bond; and the irregular recognition of him as the plaintiff in the proceedings, the verdict for the plaintiff and the judgment for his damages, instead of a judgment for
The judgment is affirmed.