Sevier v. Allen

ELLISON, J.

This is an action of replevin in which plaintiff seeks to recover from the defendant a stock of drugs and medicines. Defendant claims the goods under a writ of attachment levied by him as sheriff of Linn county and issued at the suit of J. W. Edgerly & Company against Warner & Collins, a copartnership. Plaintiff recovered in the trial court.

*190

Statement.

*189 It appears that formerly, in 1893, plaintiff owned the drugs and at that time sold one-third interest to Warner, plain *190 tiff and Warner conducting the business as partners. Afterwards plaintiff sold his remaining two-thirds interest to Collins, the business continuing thereafter as Warner & Collins. The latter became indebted to J. W. Edgerly & Company who-sued them in attachment as stated. The purchase price paid to plaintiff by both Warner and Collins was partly cash and partly represented by their individual notes. These plaintiff held until shortly before this suit when the firm of Warner & Collins found themselves to be, in fact, insolvent, though continuing the business. They inventoried the stock and found it to amount to between $1,800-and $1,900. Plaintiff’s note given by Warner amounted to $1,077.31 and his note given by Collins to $744.16, total $1,821.47. They sold the stock to plaintiff in consideration of a surrender and cancellation of these notes and he was in possession when the defendant levied the attachment writ.

Fraudulent conveyances: purchasing partnership: individual debts. Though the partnership was insolvent and plaintiff knew it, he had the right (acting in good faith) to purchase the stock paying reasonable value in 'the notes which were owing him by Warner and Collins. And the fact that Warner and Collins sold to-him separately as individuals, or as a firm, receiving the separate notes of each in payment, will not affect the legality of the transfer. Grocery Co. v. McCune, 122 Mo. 426 ; Sexton v. Anderson, 95 Mo. 373 ; McDonald v. Cash, 57 Mo. App. 536 ; Tennant v. McKean, 46 Mo. App. 486 ; Norris v. Rumsey, 54 Mo. App. 143 .

*191

_: voluntary as of one member of a partnership.

*190 But it is contended that the conveyance by Warner & Collins to plaintiff was, so far as Collins is concerned, a voluntary conveyance and void under the statute. It is said to be voluntary from the fact that Collins’ interest in the goods was *191 $1,200 and his individual debt to plaintiff was only $744.16, thus leaving as defendant claims, a clear donation by Collins of $455.84. The case of Ellison v. Lucas, 87 Georgia, 223, presented a similar feature and it supports defendant’s claim. The rule stated in that case and in Bates on Partnership, sections 565 to 569, amounts to this: Unless each partner receives a fair consideration the conveyance is voluntary, at least as to the one not receiving a consideration. If that was the law, the rule allowing a partnership to pay the individual debt of one of the partners could never find application except where all the partners had individual debts substantially equal to their interest in the partnership property conveyed. It seems to me that the difficulty with the proposition maintained by those and other like authorities is in considering that the conveyance of such partner is without consideration and therefore voluntary. It is true the conveying partner may not directly receive a consideration, but the purchaser pays a consideration by stirrendering and cancelling his debt against the other individual partner; So when a partnership pays the individual debt of one of its members, the consideration is the cancellation of the creditor’s debt and is therefore not voluntary. The rule referred to is in conflict with all the authorities supporting the view that a partnership may convey the partnership property in payment of the individual debt of one of them, and hence can not be countenanced in this state.

Appellate practice: evidence: stenographer’s notes of absent witness’ testimony. It is shown that there- had been two mistrials of the cause. That at a former trial, one Corthon was a witness and not being present at the last trial, his evidence as purported to have been taken by the court stenographer was offered. It was objected to and excluded. Defendant’s abstract sets out the evidence which is claimed to have been contained in the stenographer’s notes. But plaintiff challenges the correctness of this and we find by turningto *192 the bill of exceptions that it does not embrace the testimony. We are therefore not called upon to say whether it was proper to be received as relevant to the cause. Besides it seems it was not otherwise competent under our ruling in Byrd v. Hartman, 70 Mo. App. 57 .

Fraudulent conveyances: release of mortgage: false credit: jury finding. It appears that plaintiff’s notes were originally secured by a chattel mortgage and that some time afterwards, he without receiving payment of the notes released the mortgage on the records in the recorder’s office. Defendant charges that this was a jDart of a scheme to give Warner & Oolliiis a false credit and that the attaching creditors were thereby induced to allow them to contract the indebtedness sued on. Tbis was denied by plaintiff and tbe issue was fairly submitted to the jury on instructions and the verdict concludes defendant.

We have not found any error in the record affecting defendant’s rights in the .controversy and must therefore affirm the judgment.

All concur.