105 Mo. App. 439 | Mo. Ct. App. | 1904
(after stating the facts as above).
The respondent over objection of appellant was permitted to repeat in evidence, statements asserted to have been made to him by defendant, Turnbaugh, respecting his own financial condition; these statements were mere hearsay, the party, whose admissions or utterances they purported to be, was no party to the issue on trial, they were not offered as foundation for impeachment, nor were they pertinent to any issue on trial, and they could not but be highly prejudicial to the interpleader’s rights and should have been excluded.
“The court instructs the jury that, although the sale claimed between Turnbaugh and Luster was first made in fraud of Turnbaugh’s creditors, yet if you further find that said Torreyson brought an attachment suit claiming that said sale was fraudulent and dismissed the same upon the payment of the $375 note and released the stock of goods attached and at the time of said dismissal said Luster claimed said stock of goods as his and became .a. party to such dismissal and settlement, and said Torreyspn dismissed said suit, knowing that said Luster claimed the stock and consented to such claim and accepted the said money paid by Turnbaugli, knowing it was from the purchase price of said stock of goods and paid to said Turnbaugh by said Luster for the said purchase, then said Torreyson consented to said sale and can not complain of the same nor claim that it was fraudulent and void as against creditors, and you will return a verdict for .the interpleader.”
There was testimony, from which it might he fairly inferred, that respondent was aware of the source from
The doctrine that a creditor who knowingly acquiesces in a sale and accepts benefits arising from it can not afterwards attack it on the ground that it was made in fraud of creditors, is elaborately considered by the Supreme Court in the case of Thompson v. Cohen, 127 Mo. 215; after a lengthy review of the authorities
The instruction above quoted should have been given.
The judgment is accordingly reversed and the causa remanded.