131 Mo. App. 65 | Mo. Ct. App. | 1908
This is an action on an attachment bond in the usual form. The relator Waggoner was indebted to defendants in the sum of |400 for merchandise, and having made a general assignment of all his goods, Avares and merchandise August 18, 1903, to T. J. Little, of Dresden, Tennessee, for the benefit of creditors, defendants instituted their attachment action in Pemiscot county and caused the writ to he levied on several boxes of merchandise. , Waggoner owned a stock of goods in Weakley county, Tennessee, and a stock in Caruthersville, in Pemiscot county, Missouri. He included in his assignment to Little both lots of goods, but, as said, a feAV days afterwards the lot at Caruthersville was seized under the writ of attachment sued out by defendants. Their attachment Avas sustained, but a trial of the merits before a jury resulted in a verdict in
The main assignment of error is the admission of testimony regarding the supposed loss to relator from damage to the goods attached, and the loss of $65 on the price of the goods sold by the assignee in Tennessee. It is insisted both these losses were sustained by the assignee for the benefit of creditors, and not by relator, and hence should not have been considered by the jury in assessing damages in relator’s favor on the attachment bond. Counsel for relator answer this proposition by saying the assignment was not properly proved and hence it cannot be known one had been made; and further it was not proved .the Caruthersville goods were included in the assignment. They say the deed of assignment should have been introduced. No doubt it was the best evidence of the-fact that there was an assignment and of what goods it covered. But relator himself testified voluntarily to the execution of the deed of assignment to Little, and that it included his stock of merchandise in Tennessee and the attached goods at Caruthersville; also that he considered the latter goods had been delivered under the assignment when attached, as they had been boxed and put away for the assignee. Secondary evidence of these facts having been admitted without objection, it was competent proof of the facts. Moreover it was uncontradicted; for plaintiff was the only witness who testified in the case. Prom his statements it is perfectly manifest he had no right to recover either for damage to the attached property, or for the abatement from the price of the merchandise sold by the assignee in Tennessee. The title to both lots of goods had passed from Waggoner to the assignee under the general assignment for the benefit of creditors prior to the levy of the attachment. [St George’s Society v.
It is insisted the judgment ought not to be reversed because, granting said damages could not be recovered, nevertheless, it is apparent the jury allowed defendants’ counterclaim on the six promissory notes; whereas the undisputed evidence shows said notes did not belong to them. On the facts in the record we hold the question of whether the notes belonged to defendants and were proper matter of counterclaim, was rightly left to the jury. The effect of the instructions was that if the notes were tendered to defendants but never accepted by them, they should not be taken into consideration in arriving at a verdict, but if the jury believed they were accepted by defendants, the latter could recover on their counterclaim. As we have said, relator set up as his defense to the merits of the attachment action, that he had settled the account sued on by turning over the notes and afterwards Ave find defendants in possession of them. Whether or not they were given and accepted in settlement, was a question of fact.
The judgment is reversed and the cause remanded.