B. Hellman & Co. v. Bick

55 Mo. App. 168, 1893 Mo. App. LEXIS 271

• Court: Missouri Court of Appeals
• Decided: November 20, 1893
• Status: Published

Opinion

Ellison, J.

Plaintiffs obtained judgment against defendants and had garnishment served on Bick, the respondent here, who denied owing defendants or having any of their- property. The circuit court, on trial without a jury, found for Bick, and plaintiffs appealed.

There is nothing more in this case than a sale of personal property to Bick, one of the creditors of an insolvent firm having no knowledge of any fraud and only endeavoring to secure, or obtain ■ payment of his own claim, and taking no more goods than was necessary. The court found for Bick and there was testimony in the cause to support the finding. In such case we will not disturb the result, as has been so frequently stated.

It seems that defendants were partners in a small stock of drugs and groceries. That they bought their stock of drugs from Bick, paying him part cash and giving their note for $320. The groceries were purchased of grocery wholesale houses. Defendants concluded to separate and agreed between themselves that the defendant, J. B. Harper, should take the stock and assume the partnership debts. About the time thó invoice was completed, a firm of the grocery creditors attached the property for their claim of $48. Bick, learning of this, set about to collect his note of $320, which resulted in his purchasing the stock from J. B. Harper for the amount of the attachment just referred to and his note of $320. He paid off the attachment, gave up his note and took possession of the goods. There was evidence tending to show that the goods were not worth more than the amount he paid for them, and there was no evidence tending to show that he was in any way knowingly connected with any fraud. In such case the sale is valid. See Meyberg v. Jacobs, 40 Mo. App. 128; Tennent v. Rudy, 53 Mo. App. 196; State ex rel. v. Durant, 53 Mo. App. 493.

Some objection was made as to the admission of testimony which we think is not of sufficient substance to affect the result, especially when it is considered that the case was heard by the court without a jury. Judge Bukgbss, speaking for the supreme court McCullough v. Ins. Co., in an opinion promulgated January 31, 1893, and not yet reported, says that when a cause is submitted to the court without a jury “the same rigid rules in regard to the admission and exclusion of evidence ought not to be enforced as if the case had been tried before a jury, for it is not to be presumed that the court would, in its deliberation and judgment, be influenced by evidence” that might probably mislead a juiy.

The judgment will be affirmed.

All concur.