Gens & Tiede v. Hargadine, McKittrick & Co. , 45 Mo. App. 38 ( 1891 )

Ellison, J.

— Plaintiffs were merchants doing a retail business in the town of Chamois. They became indebted. They sold and delivered their stock, valued at $3,289.77, to Culberson & Hull, taking in payment $300 cash, and the balance in notes. Several days after this sale, defendant Cox, as sheriff, seized the goods under an attachment against plaintiff, the other defendants having instituted the suit as creditors of plaintiff. The goods were afterwards sold by the sheriff, but before the sale the following occurred between plaintiff and Culberson & Hull: Culberson & Hull agreed that, if Gens & Tiede would give them back their notes, they, Gens & Tiede, could take their interest in the goods and their claim for damages arising from the trespass. Afterwards a written assignment of the cause of action was made by Culberson & Hull to Gens & Tiede, these plaintiffs. Plaintiffs did not pay back the $300 cash, which had been paid them at the original sale, as Culberson & Hull had received that amount in sales of goods after their purchase and before the seizure by the sheriff. Culberson & Hull also added goods to the stock before it was seized, and for these, defendants settled with them. The defense was made that the original sale from plaintiff to Culberson & Hull was intended to hinder, delay or defraud creditors, which intent was charged to have been participated in by the latter. The court by instructions 3 and 5 omitted to include the hypothesis of Culberson & Hull participating in the fraudulent design or intent, and for this reason we will reverse the judgment which was obtained by defendants.

On the measure of damages the court instructed the jury that if plaintiffs prevailed they could only recover nominal damages. This instruction ought not to be repeated on another trial. Defendants justify it on the ground that as plaintiffs sue as assignees of Culberson & Hull, and as the latter got back the amount they paid for the goods, they have not been damaged, We do not believe such defense is tenable. It is quite true that if the owner of property receives it back from the trespasser, and no damages are occasioned by the use of it, that the damages to the owner for trespass will be merely nominal. But here neither the goods nor their value was received from the trespassers. They have done nothing whereby they have expiated their wrong or even mitigated it. They are in no position to claim, and have no right to claim, relief because of the transaction which occurred between plaintiffs and Culberson & Hull. The case is this : Gens & Tiede sold their property to Culberson & Hull. It is wrongfully-taken by defendants from Culberson & Hull, and the latter afterwards (though the property is in the hands of the sheriff) sell back to Gens & Tiede, together with their claim for damages for the trespass. So far as the legal question is concerned, the matter could be better illustrated by eliminating these plaintiffs from the transaction. Suppose Culberson & Hull had sold their interest in the goods and cause of action to some stranger to the affair for the same price they originally paid these plaintiffs. Would the fact that they had gotten the same amount of money they had paid out relieve defendants ? Plaintiffs can well say that they saw that Culberson & Hull had a cause of action, the value of which was measured by the value of the goods taken, with interest, and they, therefore, conclude to buy.

The foregoing sufficiently disposes of the case, and we reverse the judgment and remand the cause.

Gill, J., concurs; Smith, P. J., not sitting.