Wittmor v. Hastings

51 Mo. 171 | Mo. | 1872

Wagner, Judge,

delivered the Opinion of the Court.

We think there is no good objection to the action of the court in receiving the affidavits to prove the fact of partnership of the two firms. The criticism on their phraseology is altogether too refined; their meaning was sufficiently plain and certain, and they abundantly answered the object for which they were introduced.

Upon the merits, the case was rightly decided.

The record shows that Whitelaw & .Garrett were indebted to several parties who had judgments against them, and that they were unable to pay their debts; that Houck, an attorney at law, represented all the creditors except Hastings, Britton & Co.

Whitelaw & Garrett were anxious to save costs, and to prevent a sacrifice of the small amount of goods they possessed, and they proposed to turn over to their creditors the goods they had on hand, and they were to be sold out and the proceeds divided pro rafa.

Houck, who was the agent and intrusted with the sale of the goods, agreed also to give to Hastings, Britton & Co., their proportionate share. After the goods had been transferred and some of them sold, the attorney for Hastings, Brit-ton & Co., caused an execution to be levied upon the remain-tier, and had them sold in satisfaction of their debt. The creditors to whom they were transferred and delivered claimed the goods from the officer who had them in his custody end to indemnify him Hastings, Britton & Co., gave a bond in accordance with the statute, and that bond is the foundation of this suit.

For the plaintiffs, the court instructed the jury that if they were satisfied from the evidence that Whitelaw & Garrett turned over in good faith the goods in question, to be a partial payment on the judgments of the parties for whose use the -suit is brought, and that the . goods were so received in good .faith as a partial payment, then the goods were not subject to the execution of the defendants, and the verdict should be for the plaintiffs.

For the defendants the court declared the law to be, that before the jury could find for the plaintiffs, they must find from the evidence that the goods were transferred to the plain, tiffs in payment pro rata of their claims without any condition whatever.

Tlie question of the bona fides of the transactions was put to the jury, under instructions sufficiently favorable to the defendants.

The facts show that the property was taken possession of, that an invoice was made out, and an adequate consideration given.

Let the judgment be affirmed.

The other judges concur.