Noyes, Norman & Co. v. Cunningham

Smith, P. J.

This was an action of attachment grounded upon the eighth clause of section 521, Bevised Statutes. The defendants had judgment, and.the plaintiffs appealed. The plaintiffs principally complain here of the action of the trial court in respect to the giving and refusing of instructions. The fifth instruction given for the defendants told the jury that the possession of the good's by defendant,. W. H. Cunningham, was prima facie evidence of ownership by him, and put the *196 burden of proof on plaintiffs to show that the transfer was wrongful and fraudulent as against plaintiffs, and was made with the intention of hindering and delaying the creditors of Jonathan R. Cunningham. This was an erroneous declaration of law. The burden devolved upon the plaintiffs to show that the defendants had fraudulently concealed, removed or disposed of their property so ’ as to hinder or delay their creditors. It was unnecessary for the plaintiffs to prove more than they were required to swear to in their affidavit for the attachment. They were not required, by the clause upon which they founded their attachment, to swear that the fraudulent disposition made by defendants of their property was with the intention of hindering or delaying their creditors. The element of intention is not embraced in the ground of attachment provided by that clause of the statute. The instruction imposed upon the plaintiffs the burden of proving a fact that' was neither alleged nor required by the law to be proved. It was palpably erroneous. Reed v. Pelletier, 28 Mo. 175 ; Douglass v. Cissna, 17 Mo. App. 44 .

A similar error is, however, contained in the plaintiff’s second instruction which was given by the court. The plaintiffs having themselves invited the error are, therefore, in no situation to complain of it. Herman v. Owen, 42 Mo. App. 387 ; Flint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504 .

It is further objected that this instruction is erroneous in requiring the plaintiffs to prove that the defendants’ disposition of their property was fraudulent against the plaintiffs. The statute imposed no such burden upon the plaintiffs. If the disposition by defendants of their property was fraudulent against any one of their creditors, this was sufficient to authorize the attachment. The plaintiffs’ second instruction accords in its enunciation of the rule of law with the *197 view just stated by us. Under the defendants’ instruction the jury were directed, in effect, to find the issue for the defendants, unless they believed that the defendants’ disposition of their property was fraudulent against plaintiffs, while plaintiffs’ instruction told the jury that it was sufficient if the defendants’ disposition of their property was fraudulent as against any one of their creditors. Though the jury may have found from the evidence that the defendants had fraudulently disposed of their property so as to hinder and delay a creditor or creditors of defendants other than the plaintiffs, yet, under the defendants’ instruction, unless they further found that the disposition so made was fraudulent against plaintiffs, they were required to find for defendants. This restriction was erroneous and calculated to mislead the jury to the defendants’ prejudice, and constitutes reversible error.

It is further contended that the defendants’ sixth instruction, in effect, told the jury that it was not necessary, to make the sale of the goods valid, that the purchaser should have the money to pay for the same, and that it was perfectly competent for the seller to sell the goods on a credit, either in whole or in part, if the sale was made in good faith and with no intention on the part of the seller participated in by the purchasers to hinder, delay or defraud the creditors of the seller. This instruction is obnoxious to the objection that it is a comment on the evidence. The defendants’ other unexceptionable instructions were sufficiently comprehensive to cover every aspect of the case so far as the defendants were concerned, so that this instruction was unnecessary in any view of the case, and should not have been given.

The plaintiffs further contend that the court erred in refusing to give for them an instruction which directed the jury that they should take into considera *198 tion the financial condition of the defendants with all the other facts and circumstances in evidence.

A fact which the evidence conduced to establish was thus singled out and given undue prominence, which was improper, and for that reason was rightfully refused. Weil v. Schwartz, 21 Mo. App. 372 ; Jones v. Jones, 57 Mo. 138 ; Forrester v. Moore, 77 Mo. 651; Rothschild v. Ins. Co., 62 Mo. 356 ; Raysdon v. Trumbo, 52 Mo. 35.

In respect to the action of the court in rejecting certain offers of evidence made by defendants, we may say, that we are inclined to think that the alleged admissions of defendants to witness G-albreath should have been received in evidence. With these exceptions the case seems to have been well enough tried.

The judgment must be reversed, and the cause remanded.

All concur.