Schawacker v. Ludington , 1898 Mo. App. LEXIS 549 ( 1898 )

Bond, J.

This is a garnishment on an execution in favor of plaintiff against D. J. Dempsey. Francis H. Ludington, the garnishee, answered in substance, that he owed a balance of $1,585.02 for work and materials used in the repair of two buildings under contracts between himself and D. J. Dempsey, • a builder and contractor; that about July 1, 1896, and prior to the completion of the work, said Dempsey exhibited to him (garnishee) a contract accepted by John Dempsey for the future performance of the said contracts, and empowering said John Dempsey to receive all the money then due or to become due thereunder; that by reason of the claim of said John Dempsey as such assignee, he (garnishee) was unable to decide to whom the said balance should be paid, wherefore he prayed to be allowed to pay the same into court. This was done, and thereupon the court ordered John Dempsey to interplead, which he did, asserting title to said money as the assignee of D. J. Dempsey. To this interplea plaintiff answered by a general denial, and an averment that the assignment in question was made with the intent on the part of both parties thereto to defraud plaintiff. The evidence was conflicting on the issues presented by the pleadings. There was a verdict and judgment against the interpleader, from which he appealed.

Appellant complains that in all the instructions given by the court for respondent, as well as the one given of its own motion, the issue as to the intent of the interpleader in taking the assignment was completely ignored. To determine this point it will only be necessary to set out the instructions given of the court’s own motion, as those given for plaintiff employ substantially the same language in referring to the issue submitted to the jury. The instruction is to wit:

“In determining whether or not the assignment from Dennis J. Dempsey to John Dempsey was fraudulent or not the jury may inquire into and consider the relationship of the parties, the terms of the assignment, and all other facts and circumstances of the case, as shown in evidence, and if from all the circumstances and facts in evidence you find that the assignment from D. J. Dempsey to John Dempsey was made for the purpose of hindering, delaying or defrauding his creditors and was not made in good faith to secure or pay any outstanding and bona fide claims against him, then your verdict should be in favor of the plaintiff and against the interpleader.”

ILL.GAI.intent: participation.

All concur.

It is apparent from an inspection of the above direction, that in submitting the issue as to fraud in making the assignment, it wholly fails to inform the jury of the necessity of a finding on their part that the interpleader participated or shared in the fraudulent purpose of the maker of the instrument. In order to set aside a preference given to a creditor, either he or his trustee, must participate in the further intent on the part of the debtor to hinder, delay or defraud other creditors. The fraud relied upon must be the concoction of two minds — not the unshared purpose of one only. No other construction can be applied to the statute of frauduleut conveyances as applied to conveyances made to prefer creditors. In the case at bar there was evidence tending to prove that the assignment to interpleader (appellant) was made for the purpose of paying certain creditors specified in a contemporaneous agreement made with the assignor. There was also evidence tending to prove that in making such assignment it was the purpose of the assignor not merely to prefer certain creditors, but also to hinder, delay or defraud others. Upon the issue thus presented, it was indispensable to a verdict against the interpleader that the jury should find a participation on his part m the illegal intent of his assignor. Wait on Fraud. Con., sec. 199, and cases cited; Distilling Co. v. Ellis, 63 Mo. App. loc. cit. 21; Ross v. Ashton, 73 Mo. App. loc. cit. 257; St. Louis Coffin Co. v. Rubelman, 15 Mo. App. 280; Shelley v. Booth, 73 Mo. 77; Holmes v. Braidwood, 82 Mo. 616; Alberge v. White, 117 Mo. 363; Robinson v. Dryden, 118 Mo. 539; Nat. Tube Works v. Machine Co., 118 Mo. 375; Hargadine v. Henderson 97 Mo. loc. cit. 386; Rupe v. Alkire, 77 Mo. 642. As this case must be retried it is proper to say that the subject-matter of the assignment herein — money due or to become due to the assignor under a contract with him — does not bring it within the purview of either 5172 or 5178-of the revision of 1889. These sections relate to tangible or corporeal property, not to mere accounts or choses in action -which may be assigned by transfer and notice to the debtor. For the errors contained in the instructions, this judgment is reversed and the cause remanded.