Hearn & Co. v. Due

79 Mo. App. 322, 1899 Mo. App. LEXIS 285

• Court: Missouri Court of Appeals
• Decided: March 7, 1899
• Status: Published

Opinion

BOND, J.

Plaintiffs replevied the property in dispute from the possession of the sheriff and constable of Howell county, Missouri, who had seized it under writs of attachment against the vendor of the plaintiffs. There was a verdict and judgment for defendants, from which plaintiffs appealed.

On the trial the evidence disclosed that plaintiffs held a note of W. T. Trotter and wife for $360, secured by a mortgage on household furniture; that the money for which this note was given had been loaned by Trotter to his wife’s brother, E. L. Owen, a grocer merchant at Willow Springs, Missouri, in the spring and summer of 1895; that in the fall of the same year Mrs. Trotter notified plaintiffs of this fact, and requested them to collect the money from her brother, whereupon a member of their firm came to Willow Springs for that purpose, and after failing to make a collection, he purchased the stock of goods belonging to Owen for $800, giving him therefor $200 in cash, a draft for $240, and taking credit for the amount of the Trotter debt of $360. Plaintiffs took possession of the stock at once, and it was attached by defendants on the succeeding day. They complain of the instructions given for defendants.

fraud. In the transaction under review plaintiffs acted in the dual role of creditors and volunteer purchasers. To the extent of the indebtedness on the part of E. L. Owen for $360, which had been borrowed from plaintiffs for his use, they were entitled to receive from him payment by the transfer of a sufficient portion of his stock of goods, irrespective of his motive as to his other creditors. Beyond thar plaintiff could only acquire any part of the goods of said Owen by a purchase in good faith, that is, a purchase of the goods in question for a valuable consideration and without notice of any fraudulent intent on the part of the seller. It is not enough, however, to invalidate a sale of chattels by an insolvent, that the purchaser knew of the facts and circumstances from which he might have inferred a fraudulent pur? pose on the part of the seller. Such facts and circumstances are evidentiary, and the jury are entitled to consider them in determining whether or not the purchaser was aware of the fraudulent intent of his vendor; but the jury should not be told that they necessarily imply participation on the parü of the purchaser in the mal-intent of the seller*. They should be left free to draw their own deductions as to the effect of facts and circumstances which would ordinarily put the buyer upon inquiry as to the motives of his seller. Sammons v. O'Neill, 60 Mo. App. 530, and cases cited; Dry Goods Co. v. Schooley, 66 Mo. App. 406; State to use v. Mason, 112 Mo. 374. Instruction number 1, given by the court on behalf of defendants was diametrically opposed to this doctrine. Instruction number 7 given by the court on behalf of defendants was also opposed to tbe rule wbicb places tbe burden if proving fraud in tbe sale of chattels upon tbe party who charges it. Eor tbe errors contained in these instructions tbe judgment herein is reversed and tbe cause remanded.

All concur.