State ex rel. Steinberger v. Schulein, 45 Mo. 521

State ex rel. Steinberger v. Schulein

45 Mo. 521 | Mo. | 1870

Bliss, Judge,

delivered the opinion of the court.

Schulein, Sulsbacher and Hyman obtained judgment against Waterman & Bruckheimer, and levied upon certain goods as their property. Steinberger, for whose use this suit is brought, notified the sheriff that he claimed the goods, whereupon defendants executed a bond under the statute. The goods were sold and the bond returned with the execution, and suit is brought upon it. Waterman & Bruckheimer, the execution defendants, .were merchants of St. Louis, and, shortly before the judgment was rendered, sold, or pretended to sell, their stocks of goods, both in this St. Louis store and in one in Rocheport, to said, Steinberger in payment of a large indebtedness owing him for money loaned. The defendants claim that the sale was fraudulent, first, because they were induced to give said Waterman & Bruckheimer the credit upon the false representations of Steinberger as to their solvency; second, because the sale was made to defraud creditors, and also because it was not accompanied by á change of possession.

Judgment was rendered for the defendants; and I find an instruction given at their instance that will not bear scrutiny, which was, in substance, that if Waterman & Bruckheimer, being then indebted to Steinberger, obtained their credit of Schulein & Co. through the false and fraudulent representations of said Steinberger, and afterwards he obtained the goods bought upon such credit in payment of their said debt to him, and if the property sold under the execution was the same or part of .the same so bought by Steinberger, the jury should find for defendants.

The evidence is quite clear that Steinberger introduced Water*524man to Schuleiii'&Co-.in New York, and represented his-firm to be good, when he knewthey were in failing circumstances — when they owed him- over $12,000, and only lived'by his • sufferance— and that they obtained the-credit on-the strength of this recommendation. A clear case is thus made of liability in a direct action against him. ■ But does it follow that upon that ground he is incapacitated to purchase the goods ? I -imagine- the person who drew the instruction had-more in his-mind than is embraced in it. He might have supposed from the- evidence that the jury would believe that the recommendation to Schulein & Co., and the purchase by Waterman & Bruckheimer, were but parts of one conspiracy- to enable the latter- to obtain :the' property for the purpose of paying their -debt to Steinberger, and he might have intended to cover that ground.- But the instruction does not go so fai-j and I know of' no case that would sustain it.

I see no substantial error in the other instructions, though some of them are a little questionable in relation to a change of possession. That subject is fully and clearly'considered in Claflin v. Rosenberg, 42 Mo. 439, and the meaning-of the statute can hardly be misunderstood. When the original merchants are employed as clerks after the sale, there should be such marks of change that customers would- be advised that the store had a new proprietor. ••

For the error of the instruction spoken of, the judgment must be reversed and the case remanded- for a new trial.''

The Other judges concur. ■