Banking House of Wilcoxson & Co. v. Darr

41 S.W. 227, 139 Mo. 660, 1897 Mo. LEXIS 205

• Court: Supreme Court of Missouri
• Decided: June 8, 1897
• Status: Published

Opinion

Gantt, P. J.

On December 8, 1892, the respondent, the Banking House of Wileoxson & Company, recovered judgment against W. Z. Darr and John R. Wagaman, partners, in the circuit court of Carroll county, for $3,169.39, being the balance due on a promissory note executed by said firm. Execution, issued on this judgment to .the sheriff of Jasper county. Steadley, the appellant, was summoned as a garnishee.

The usual interrogatories being propounded by plaintiff, the garnishee answered each interrogatory in the negative. In due time plaintiff filed a denial to the garnishee’s answer, averring: First, that the garnishee had in his custody, etc., a certain livery outfit belonging to defendant W. Z. Darr of the value of $3,500; second, that the garnishee was indebted to the defendant W. Z. Darr in the sum of $4,000, on account of moneys deposited and left with said Steadley by said Darr, on or about the-day of September, 1892, in fraud of the creditors of said Darr, and for the purpose of cheating and defrauding and hindering and delaying the plaintiff in the collection of its judgment and execution. The garnishee replied, denying specifically the allegations in the denial.

On the issues thus joined, the cause was submitted to a jury for trial March 28, 1894, and resulted in a verdict for plaintiff on the second cause of action set forth in the denial, for the sum of $3,513.14. On which verdict the court rendered judgment for that amount against the garnishee, and adjudged that the garnishee pay eight per cent interest on the judgment. In due time the garnishee filed his motions for new trial and in arrest of judgment, which being overruled, he brings the ease to this court by appeal.

On the trial of the cause, the testimony tended to show that on September 1, 1892, the garnishee contracted for the purchase of the livery outfit in controversy with the administrators of Wicks & Campbell, in Carthage; that on said day he paid on said purchase price the sum of $500, overdrawing his account at the bank of Carthage for that amount at the time. By the terms of the contract, the garnishee agreed to pay $2,300 additional for said livery outfit in thirty days. On the third day of September, 1892, the defendant Barr indorsed and delivered to the garnishee a draft for ‡5,000, drawn by the First National Bank of Carrollton on the Continental Bank of St. Louis, in favor of Barr, which draft Steadley also indorsed and deposited to Ms credit in the Bank of Carthage. On the same day, Steadley paid, by check on this bank, the balance of the purchase price of the livery outfit, ‡2,300. It was conceded that the livery outfit was purchased with the proceeds of this $5,000 draft. Plaintiff contended on the trial that this livery outfit belonged to Darr and was purchased for his benefit. Garnishee contended that he bought this livery outfit for his own benefit, and that Darr had no interest or claim therein. The great bulk of the testimony at the trial was directed to this issue, it being stipulated on the trial that the livery outfit was worth- $3,000. The finding of the jury, it will be seen, was in favor of the garnishee on this issue.

According to the testimony of Darr and the garnishee, Steadley, the $5,000 draft, turned over by Darr to the garnishee, was in payment of Darr’s note held by garnishee, dated January 1, 1889, for $3,711.50, due one year after date, with eight per cent compound interest, amounting to $1,925 at the time of the delivery of the draft; that the garnishee paid back to Darr $75, being the difference between the amount of the draft and the amount of the note, and that he also surrendered the note to Darr and marked the same “paid.” The garnishee, Steadley, and Darr both testified that this $3,711.50 note was executed by Darr to Steadley, in lieu of five other notes previously executed by Darr to Steadley, the amounts and dates of said notes being as follows: February' 15, 1881, note $535.50; January 7,1885, note for $625; December 22, 1885, $180; July 19, 1886, note for $371; March 11, 1887, note for $700. Each of said notes bore interest from date, having been executed by Darr to Steadley in settlement of debts owing by Darr to Steadley, for borrowed money. Both Darr and Steadley testified that the indebtedness represented by these notes was genuine, and that the draft was turned over by Darr to Steadley absolutely, for the sole purpose of paying this debt; that the debt was honestly due and unpaid, and that there was no agreement, express or implied, that Steadley should hold this draft or any part of the proceeds of the same, for Darr’s benefit.

The evidence on the part of plaintiff to • establish that the transaction was fraudulent and that the notes from Darr to Steadley were drawn merely to cover up Darr’s property, consisted in the fact that Darr was Steadley’s father-in-law; that although Steadley claimed to have held this $3,711.50 note in the years 1890, 1891 and 1892, his assessment lists made under oath to the assessors in Carroll and Jasper counties wholly omitted this note and all the other notes mentioned from 1884 up to 1889. A certified copy of Steadley’s Jasper county assessment was read in evidence over the garnishee’s objection, and in addition to this when on the stand he testified he did not give in said notes, that like many others he was willing to beat the State out of the taxes on said note. It further appeared in evidence that while Darr owned some valuable real estate near Carrollton he was largely in debt. That he had for years conducted a losing business in handling fine cattle; that he was insolvent about the time the note, on which the bank judgment was obtained, matured. It also appeared that Steadley himself, while claiming that he had loaned Darr nearly $4,000, was, during all that time, a heavy borrower himself; that he had borrowed $2,000 from the Carroll Exchange Bank; that though in mercantile business for ten or twelve years in Carrollton with a capital of $10,000 or $12,000, when he concluded to remove to Carthage to go into business, he - totally destroyed all his books, accounts and memoranda of every kind so that when it was sought to inquire into the origin of this indebtedness from Darr to himself, there was not a vestige of a memorandum of any transaction between the two, except Darr?s private memorandum which the trial court correctly excluded.

It was furthermore shown as a circumstance that Darr sold his lands and took notes therefor; that he began negotiations with a Mr. McCombs to raise money on these notes, but when told by McCombs that the transaction would be conducted through Wilcoxson & Company, without notice to McCombs, Darr sold the notes to Eads and took the draft on which Steadley obtained the money to pay for the livery stable at Carthage. A few days prior to the purchase of the livery stable, the garnishee Steadley was asked for a statement of his affairs by a bank in Carthage in contemplation of certain accommodations he desired of the bank and he did not give in the note on Darr. In a word plaintiff claimed that Darr was insolvent; that garnishee was his son-in-law; that there was no satisfactory evidence that Darr owed Steadley anything; that Steadley himself was a constant heavy borrower; that he had never disclosed to the tax assessors of either Carroll or Jasper county the existence of the note from Darr to himself; that Steadley’s conduct in destroying all his books and memoranda was a suspicious circumstance; and finally that the jury had the right to disbelieve Steadley and Darr as to the indebtedness from Darr to Steadley as entirely unreasonable and incredible. There was also evidence tending to show that Steadley showed no desire to buy the livery stable until Darr appeared in Carthage; that he had Darr examine the stock and purchased it on Darr’s judgment alone; that Darr took the draft in person to-Carthage when he could have mailed it as well.

The instructions could scarcely have been drawn more favorable to the garnishee. To reverse this judgment is the purpose of this appeal by t'he garnishee.

I. The admission of the certified copy of the garnishee’s tax list given in Jasper county is assigned as error. The ground of the complaint is that our statute nowhere makes an office copy of this assessment list evidence. Section 7534 requires the assessment list to be signed and morn to. It requires the taxpayer to subscribe to an oath that the list so sworn to contains a true account and statement of.......“notes unsecured by mortgages or deeds of trust and notes secured by mortgages or deeds of trust.” This list is required to be filed in the office of the county clerk. It is an original file in his office. That the original would be evidence, there can be no doubt. Boyer v. Tucker, 70 Mo. 457. It would certainly have been competent for the jury in an investigation in which the very existence of a debt is the issue, to have known that the person who claimed to owe the debt had sworn in a proceeding required by law, that he had no such debt or had evaded the fact by a sworn list, omitting said debt. That it is unfortunately a common practice to defraud the revenue by failing to list such debts by no means lessens the turpitude of the. oath or the practice. The original being evidence, an office copy of it is admissible by the rules of the common law. An officer having the legal custody of public records is ex officio competent to certify copies of their contents. 1 Greenleaf, Ev., sec. 507, and cases cited; State v. Austin, 113 Mo. 538, loc. cit. 544.

But aside from this, Steadley testified he was assessed from 1884 up to 1890 and he was asked if he gave in these Darr notes and answered he did not. No possible injury under such circumstances could have accrued from admitting the copy of the list.

II. Again it is urged that the court erred in sustaining an objection to a part of the deposition of W. Z. Darr. Beginning with the cross-examination we find the following interrogatories and answers:

“Q. What business were you engaged in 1882, ’88, ’84, ’85,' ’86, ’87 and’88? A. Losing money. Cattle business and farming.

. “Q.' Did the business require the use of large sums of money and frequent payments? A. Yes, sir.

“Q. Were those entries made at the time of the settlement of those notes with Steadley? A. Yes, sir.

“Q. I wish yould turn to the entry of date of ■giving the first note. A. Fifteenth of February, 1884, note for $535.50.

“ Q. Read to the stenographer the item in your book. A. ‘February 15, 1884, settled in full with Steadley and gave him my note of $535.50.’

“Q. Turn to the next entry of the giving of a note. A. January 7, 1885.

“Q. Is it in your handwriting, and made at the time? A. Yes, sir.

‘■‘Q. • Read it. A. ‘Settled with Steadley and gave him my note for $625.’

“Q. Turn to the next entry. A. December 22, 1885.

In your handwriting? A. Yes, sir.

“Q. Made at the time? A. Yes, sir.

• “Q. Read it. A. ‘Settled with Steadley and gave him my note for $480.’

“ Q. The next. A. ‘July 19, 1886. Gave Steadley my note for borrowed money, $374.’

“Q. In your handwriting? A. Yes, sir. And made at the time.

UQ. Turn to the next. A. ‘March 11, 1887. Settled with Steadley; paid him $1,000.85, and gave him my note for $700, making in all $1,700.85.’

UQ. I will get you do state if that represented money you borrowed from the time of the giving of the previous note? A. Yes/ sir.”

Plaintiff’s counsel objected to all the foregoing testimony in relation to entries in book, for the reason that the witness is testifying from a book or memorandum, which is not produced or identified.

The court sustained the objection.

To which ruling of the court garnishee then and there excepted at the time.

It will be observed that this was not an offer of the book itself nor does it appear anywhere in the record that this was a book account within the purview of our statute. "While Darr testified the entries offered were in his handwriting and made contemporaneously with the transactions, the book was not in court. The books were neither used to refresh the memory of the witness nor were they offered in evidence as account books of original entries, so that the offer did not fall within the decision in The Anchor Milling Company v. Walsh, 108 Mo. 277 and Robinson v. Smith, 111 Mo. 205. As tendered to the court, this evidence was merely Darr’s own declarations in his own favor. He testified outside of these entries that he had given these notes and that the note in judgment was the sum of all the previous notes. This was all that the garnishee was entitled to. Certainly we can not convict the circuit court of error when it is apparent it did not see the original book and hénce could not determine its character. If competent at all, the books themselves should have been produced and their appearance and character submitted to the jury and an opportunity to plaintiff to cross-examine upon the entries. We think the court ruled correctly.

III. The sufficiency of the plaintiff’s denial of the garnishee’s answer to support a finding of fraud is challenged. No motion was made to make it more specific and no demurrer interposed. It was first questioned in the motion in arrest of judgment. The denial is as follows:

“Second. — And the plaintiff further denies each and every allegation contained in defendant’s answer to the second interrogatory, filed herein, and on the other hand, plaintiff alleges and charges that at the time of the service of the garnishment in this cause, the defendant, Steadley, was.indebted to the said Wm. Z. Darr, in a large sum, to wit: The sum of $4,000 on account of moneys deposited and left with the said Steadley, by the said Wm. Z. Darr, on or about the -day of September, 1892, in fraud of the creditors of said Darr, and particularly this plaintiff, and for the purpose of cheating and defrauding and delaying this plaintiff in the collection of its judgment and execution against the said Wm. Z. Darr. And plaintiff asks judgment against the defendant herein in accordance with the statute in such cases made and provided.”

In his reply the garnishee specifically “denied that at the time of the garnishment he was indebted to the said William Z. Darr in a large sum, to wit: The sum of $4,000, or in any other sum whatever, on account of money deposited and left with the said Steadley by the said Willialm Z. Darr on or before the - day of September, 1892, or at any other time, in fraud of the creditors of said Darr, and for the purpose of cheating, defrauding and delaying plaintiff in the collection of its judgment and execution against the. said William Z. Darr.

“And said garnishee further denies that he was at the time of the service of said garnishment upon him, or since said time, or at any other time, indebted to said William Z. Darr in any sum or in any .manner whatever; and denies that the sum of $4,000, or any other sum whatever,' was ever at any time deposited with, this garnishee by the said William Z. D.arr for any purpose whatever.”

The substance of the issue thus made was that Darr had deposited or left in Steadley’s hands $4,000 of Darr’s money in September, 1892, in fraud of Darr’s creditors, particularly the plaintiff and for the purpose of cheating and defrauding plaintiff in the collection of its judgment. The pleading is short and concise, likewise the facts supporting it were simple. No amount of words could have strengthened the denial or given the garnishee better notice of the issue he was to meet. Certainly it can not be said this was not a statement of a cause of action. Even if defective in not alleging all the specific acts which constituted the fraud which good pleading requires (Nichols v. Stevens, 123 Mo. 98), still, after verdict, it is too late to raise that question, unless the petition is radically defective and'wholly fails to state a cause of action. People’s Bank v. Scalzo, 127 Mo. 165; Grove v. City of Kansas, 75 Mo. 672. The reply of the garnishee tendered the issue, and the proof was offered without objection to show that the proceeds'of the draft for $5,000 was the property of Darr and had been deposited by him with Steadley. Steadley assumed the burden of showing that while he did receive the proceeds of the draft, he was not a bailee of Darr but in his own right in the payment of a note which Darr owed to him. Certainly he was not misled as to the character of proof required to sustain the issue, the facts of which were peculiarly within his own knowledge. The garnishee met the issue and tried the case as one at laiv, and asserted that he was the creditor of Darr, and submitted his instructions upon this view and can not now complain of the insufficiency of the denial. Seckinger v. Mfg. Co., 129 Mo. 603.

IV. The most serious contention of the garnishee is that there was no evidence of fraud to submit to the jury. It is true that the insolvency of the defendant Darr and the fact that Steadley was his son-in-law are not alone sufficient to establish fraud, but these facts when coupled with other suspicious circumstances may furnish satisfactory evidence of fraud. When it is borne in mind that Darr had usually transacted his banking business with plaintiff, it excites suspicion to learn that when he desired to raise money on the real estate notes that he not only .makes no effort to get plaintiff bank to discount them, but he at once breaks off his negotiation with McCombs when that gentleman informs him that in furnishing him money on these notes the transaction would be through the plaintiff bank. Can it be said that a court or jury might not justly discern in such conduct a disposition to hide from plaintiff the knowledge that he was receiving this money? Again it was a most significant fact that Steadley, who was himself a constant borrower of large sums with a capital of only $10,000 or $12,000 should be loaning nearly $4,000 to Darr without the semblance of security therefor, either personal or by mortgages. Nor can it be said to be insignificant that Steadley not only failed to include so large a note from his assessment list made under oath, but when giving his own commercial standing to the Carthage bank to obtain credit he left out this note as apart of his assets. When called upon to account for the inception and origin of so large a note, one would naturally expect a merchant’s book to show the cash transactions out of which the indebtedness grew, but the garnishee could make no showing because he had deliberately burned all his books, memoranda and papers which would contain a history of his transactions. Why should he destroy all his books, accounts, etc.? Added to this is the unsatisfactory testimony, of Darr. He was asked “when was the next note?” He answered “March 11th, 1887.”

“Q. What amount?” He answered, “I settled with him by giving him $1,000 and giving my note for $700.”

■ “Q. What did this note represent? A. The balance I owed him.”

This would be the ordinary course upon a settlement. The note given would ordinarily be for the whole balance due, but on cross-examination he says this payment of $1,000 and note for $700 only represented what he had borrowed from his son-in-law after giving the note of July 19, 1886, a direct contradiction of his previous .statement. In another place he states that he borrowed $1,000 of Steadley on January 23, 1886, and that he paid that note in full, and-yet he afterward testifies that the note for $3,711.50 included the $1,000 note. Time will not permit that we shall go through all this record and point out its inconsistencies and the várious badges of fraud.

There is, however, one controlling fact. It was conceded that Darr had $5,000, the proceeds of his farm; that he converted it into exchange; that he took the train and went to Carthage and tuimed it over to his son-in-law; that he and his son-in-law testified that he owed this money to .the son-in-law and paid it to him. The jury saw these men and heard their evidence. The cause was tried in a county where they had all lived and where they were known and the jury discredited their statements. It can not be affirmed of this record that there was no substantial basis for their refusal to believe the story of Darr and Steadley. We are not justified in holding that the court erred in submitting the case to a jury, nor in refusing to .set aside their verdict.

The instructions are very fair to the garnishee. We find no error in the instructions or record .except that the clerk makes the judgment bear eight per cent interest. Plaintiff conceded this is an error and enters a remittitur of two per cent in the rate of the interest in this court, which is accepted, and the judgment is reformed so as to read that “said judgment bear six per cent interest per annum” instead of eight per cent, and as amended it is affirmed.

Sherwood and Burgess, JJ., concur.