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crease by giving fifty thousand dollars, or parties depend upon its construction, and, in five hundred shares, to each of the three passing upon this question, the resolution, in stockholders, and by placing the remaining its entire scope and meaning, must be taken fifty thousand dollars, or five hundred shares, into consideration, and, if unambiguous, the to the credit of the old firm of George Knapp case adjudged by it alone, without the aid & Co. on the books of the corporation, “to of contemporaneous or subsequent acts of the be disposed of as thought proper by the pres- corporation. Carr v. Lackland, 112 Mo. 442, ent directors of the company, and, when dis- 20 S. W. 624; Railway Co. v. Trimble, 10 position should be made of any portion of Wall. 367. In cases of this kind, it is only said stock, the same to be specially noted in where the language used is ambiguous or the records of the proceedings at the next uncertain as to its meaning that it should be meeting of the board of directors." In the construed in the light of the situation attendargument of the case, both parties seem to ing the transaction; the purposes to be athave regarded the clause with respect to a tained and the conduct of the parties are to subsequent disposition of the stock as pro- be taken into consideration in arriving at vided for by the resolution,-that is, to secure their intention. Fleming v. Graham, 31 Mo. the services of new parties,-and at the same App. 160; Carr v. Lackland, supra. time make such parties stockholders, SO Thus, it is said in Bishop on Contracts (secthat they would be personally interested in tion 412): "In a case of doubt, the intention the success of the enterprise. The contention which the parties, by their acts under their of the plantiff is that the old firm of George contract, have practically given it, will have Knapp & Co., under the resolution of January weight, and it may be controlling. But this 6, 1868, took the 500 shares set a part to it rule will not be suffered to overthrow the as the absolute and unconditional' owner, plain terms of an agreement." When the subject, however, to be disposed of by the language is clear, and will admit of but one present directors of the company to secure interpretation, the language so used is the the services of new parties in the working de best possible evidence of the intention. The partment, thereby making them personally referee was of the opinion that, upon the face interested in the corporation, but for no other of the resolution, there were doubts as to the purpose, nor in any other way; and that real intention of the parties, and that conwhen George Knapp, one of the three direc- temporaneous acts of the corporation with tors, died, in 1883, before the disposition of respect of the stock should be taken into consuch stock for the purposes indicated, the sideration in arriving at the true intent and power and authority to do so no longer ex: meaning of the resolution, and that, when isted. Upon the part of the defendant, the this shall have been done, it is shown that contention is that it is manifest from said the 500 shares of stock were given to the old resolution that there was no intention to firm, as its absolute property, with the power give the shares claimed by plaintiff as ad- in the present directors to dispose of them ministrator to the old firm, and that the evi. as they thought proper. When the corporadent purpose was to set apart these shares tion increased its stock to $500,000, the inof stock as a trust fund, to be used for the crease, with the exception of the $50,000 purpose of securing the services of new par- which were placed to the credit of the old ties in the working department of the cor- firm, was immediately distributed equally poration of George Knapp & Co., as occasion among the three stockholders, to whom might seem to require. In support of de proper certificates were subsequently issued. fendant's contention, it is argued that $50,- If the stock was intended as a gift to the 000 each were given to George Knapp, Na- old firm, it is difficult to see why it was not thaniel Paschall, and John Knapp, while the divided among its members, as were the $50,000 in controversy, by the terms of the remaining $150,000, and why it should simply resolution, were only placed to the credit of be placed to the credit of the old firm, with the old firm, to be disposed of as they thought power in the directors to dispose of it as proper by the directors of the company, for they saw proper. Absolute gifts are not a special purpose, and, if it were the inten- usually made in that way. The same pertion to give absolutely the $50,000 to it, sons to whom the remainder of the stock there is no apparent reason why it should was given constituted the membership of be placed to its credit, or why the same the old corporation, and the manner in which language was not employed in disposing of the stock sued for was disposed of seems the stock to George and John Knapp and inconsistent with the theory of an absolute the estate of Nathaniel Paschall; that the gift to the old firm. If this had been the stock placed to the credit of the old firm

purpose, why was it not disposed of in the was subject to the control and disposition of same way as the other stock, and why was the president and directors of the company, it that the corporation retained dominion to be specially noted in the records of the and control over it? If such had been the proceedings at the next meeting thereafter, intention, it would seem that there was no which is inconsistent with the theory that it necessity for giving a part of the stock to was intended as an absolute gift. Unless the members of the firm individually, and the resolution of January 6th is uncertain and a part of it to them as a firm or corporaindefinite as to its meaning, the rights of the tion. Such circumstances, when taken in

connection with the fact that no certificates of the good character of defendant is not reof stock were ever issued for the stock to quested, the failure to instruct thereon is not

reversible error. the old firm, while there were to the indi

Sherwood, J., dissenting.

5. A new trial for newly-discovered evividual members thereof for the stock given dence should not be granted where the evidence to them, respectively, is inconsistent with is merely cumulative, and there is no satisfacthe theory that there was an absolute gift

tory reason given why the witnesses were not

produced at the trial, and the affidavit of the to the old firm. It is not thought that

defendant is not filed to show that he did not the fact that the capital of the corporation, know of the evidence at the time of the trial. which is its property, the title to which is in

Appeal from St. Louis criminal court; Henit, while the capital stock of the corpora

ry L. Edwards, Judge. tion, which represents the interest of the

Andrew Nickens was convicted of assault stockholders in that capital, and belongs to

with intent to kill, and appeals. Affirmed. them, makes any difference with respect of the authority of the stockholders to dispose McDonald & Howe, for appellant. R. F. of either when it is done by and with the Walker, Atty. Gen., and C. 0. Bishop, for the consent of all the stockholders, and the in- State. terests of creditors of the corporation are not affected thereby. It can make no difference, BURGESS, J. From a conviction in the in construing the resolution, whether the cor- St. Louis criminal court for an assault with poration owned the stock and disposed of it, intent to kill one Andrew Hopkins, on puror whether the stockholders owned it, and, pose and of his malice aforethought, defendby resolution, of the corporation, disposed ant appeals. Defendant's punishment was of it.

fixed at two years' imprisonment in the penWe quite agree with counsel for plaintiff itentiary. After ineffectual motions for new in that we do not deem it necessary to go | trial and in arrest, he presented his bill of into a discussion of the law of trusts, as the exceptions to the trial judge, who refused to question to be determined is, what was the sign the same, and certified his refusal on intention of the parties in increasing and dis- the ground that it was untrue. Defendant tributing the stock, as appears from the reso- then presented a bill of exceptions signed by lution in question, if its language is unam- three bystanders, which the judge refused to biguous and comprehensive? Bliss, J., in St. allow to be filed; and, within five days, de Louis Gaslight Co. v. City of St. Louis, 46 Mo. fendant deposited his said bill of exceptions, 121, in speaking of a contract, says: “When supported by affidavits, with the clerk of the it is plain that only one meaning can be at- court, and also, within five days, the circuit tached to it, it admits of no other construc- attorney, representing the state, filed counter tion, and that meaning must be enforced. affidavits. To give it any other would be making, rather The difficulty occurred in a saloon of which than interpreting, a contract." From the defendant was manager.

Both the defendviews herein expressed, we are constrained ant and Hopkins are negroes. On the evento hold that the intention and meaning of ing of November 19, 1892, Hopkins, in comthe resolution was that the stock in contro- pany with one John Ray, went into the saversy was placed to the credit of the old firm, loon, in which there were several persons, in trust for the defendant, to be disposed of drank several times, when Hopkins comas thought proper by the directors of the menced taking off the hats of some of those company, and that the plaintiff is not en- present, when defendant ordered him to detitled to recover. The judgment is reversed. sist, give the hats back, and then ordered All concur.

him out of the saloon. Hopkins started to go out, when he was stopped by the defend. ant, who, about the same time, drew his pis

tol. Hopkins said: “You have got a gun. STATE y. NICKENS.

Why don't you shoot?" Defendant then fired (Supreme Court of Missouri, Division No. 2. at Hopkins, the ball entering the right arm June 12, 1894.)

near the wrist, and coming out near the elAssault with INTENT TO KILL - INSTRUCTIONS

bow. When defendant was arrested, a few Evidence-CHARACTER OF DEFENDANT. minutes after the shooting, he stated that he 1. On the prosecution of a saloon keeper

had shot Hopkins for disturbing the peace, for an assault with intent to kill, committed in and made the remark: "God damn him! I his saloon, an ordinance requiring saloon keep- wish I had killed him." No weapons were ers to give bond to keep an orderly place is not admissible, as the defendant would have the

found upon Hopkins. The theory of the de authority to prevent disorder in his saloon fense was that of self-defense. Defendant whether there was such an ordinance or not. admitted the shooting; testified in his own

2. The trial court may ask a witness such questions as it deems necessary for its own in

behalf that he was not personally acquainted formation and that of the jury.

with Hopkins; that Hopkins was under the 3. On a prosecution for an assault with in- influence of liquor, and drank two or three tent to kill, with malice aforethought, the fail

times in the saloon; he was very boisterous ure to instruct on a lower grade of assault cannot be objected to for the first time on appeal.

and noisy; that he pulled off the hats of 4. Where an instruction as to the evidence two or three men, who raised quite a row


about it. “I came out, and told Hopkins to It is also contended that the court should give the hats back to the boys, and keep qui- have given an instruction for the lower grade et, whereupon he got mad and cursed me. of assault with intent to kill. It is only necHopkins gave Brown his hat back, but re- essary to say, with respect of this contention, fused to give McGee his, and somebody said that no instruction for the lower grade of asto Hopkins, 'Slug him in the neck' (meaning sault with intent to kill was asked by deMcGee). Not wishing to have any trouble in fendant, nor was the attention of the court, there, I ordered Hopkins out of the saloon, for failure to thus instruct, called in the moand he turned to me, with his left hand in tion for new trial, and the objection cannot his left hip pocket, and acted like he was go- be raised for the first time in this court. ing to draw a pistol, and said to me: 'Damn State v. Cantlin (Mo. Sup.) 23 S. W. 1091; you! You have got a gun, have you? Well, State v. De Mosse, 98 Mo. 344, 11 S. W. 731; so have 1,-as big a gun as you have got - State v. Foster, 115 Mo. 448, 22 S. W. 468; and, damn you, shoot,'-and was very threat- State v. Noeninger, 168 Mo. 166, 18 S. W.990. ening, and acted like he was going to pull his What has been said applies with equal pistol out, and I was afraid he was going to force to the failure of the court to instruct on shoot me, and I shot first. I did not know the evidence as to the good character of the the man.

I saw he was under the influence defendant. No instruction on this subject of liquor, and, when he pulled his hand back was asked by the defendant or his counsel, from his pocket, I was afraid he would shoot and it was not reversible error for the court me; and, in order to be first, I shot him be- to neglect to instruct on this phase of the fore he could get a chance to shoot me. He

State v. Murray, 91 Mo. 97, 3 S. W. had started to back out of the saloon, but at 397; State v. McNamara, 100 Mo. 100, 13 S. the time he started to pull out his pistol he W. 938. stopped, and turned towards me; and when There was no error in overruling defendhe ran his hand down in his hip pocket, be- ant's motion for a new trial on the ground fore he could have time to draw his pistol, I of newly-discovered evidence. The evidence shot.” Defendant proved a good character was merely cumulative, and would not likefor peace and quiet. The court instructed for ly produce a different result on another trial. shooting with malice aforethought, and on Moreover, both of the persons whose affidaself-defense.

vits were filed in support of this contention, Upon the trial, defendant offered in evi- viz. George Rogers and Ellen Donahue, were dence an ordinance of the city of St. Louis witnesses to the difficulty; one of them, Elin relation to dramshops, for the purpose of len Donahue, having a lunch counter, the showing that, before a license could be ob- door of which opened into the room where it tained for a dramshop, the applicant had to occurred, in which she was standing at the give a bond in the sum of $2,000, conditioned time, and no satisfactory reason is given why that he would keep an orderly house, etc., they were not introduced as witnesses upon which the court, on objection of the state, ex- the trial. Nor did the defendant file his own cluded; and this, it is insisted, was error. affidavit in support of his motion, and it did The ordinance was clearly inadmissible for not appear but what he knew of this eviany purpose, having no connection whatever dence at the time of the trial. It was held with, or bearing upon, the case. The de- by this court in State v. McLaughlin, 27 Mo. fendant had the same right without the or- 111, that by the application it must be shown dinance that he had with it, to prevent dis- - First, that the evidence has come to the orderly conduct in his place of business, and knowledge of defendant since the trial; secto use all necessary means for that purpose. ond, that it was not owing to the want of The ordinance was not intended for his pro- due diligence that it did not come sooner; tection, and to enable him to keep an orderly third, that it is so material that it would house, but that he might be held amenable to probably produce a different result if the the law for failing to do so, and, for a vio- new trial were granted; fourth, that the aflation of the ordinance in this regard, be fidavit of the witness himself should be proprosecuted upon his bond by the city.

duced, or his absence accounted for; sixth, Objection is taken to the action of the that the object of the testimony is not merecourt in propounding questions to the witnessly to impeach the character or credit of a Sommers, but these remarks were not em- witness. See, also, State v. Welsor (Mo. Sup.) bodied in the motion for a new trial, and 21 S. W. 443. cannot be reviewed here. This contention, No objection has been taken by counsel for however, seems to be without merit. It the state to the manner of perfecting the bill would be indeed strange if the trial judge of exceptions, and of preserving the proceedwere not permitted to ask such questions of ing on the trial of the cause. We have therewitnesses, during the trial, as he thought nec- fore examined with much care the bill of exessary for his own information, or that of the ceptions as presented to the trial judge, and jury, without being subject to unjust criti. which he refused to sign, or permit to be filed, cism. It was not only his right, but his du- together with the affidavits filed by defendty, to do so. State v. Pagels, 92 Mo. 310, 4 ant under the statute; and, after having done S. W. 931.

so, we have been unable to find any error in the record which would justify a reversal of a judgment obtained by the defendant Cothe judgment. It is therefore affirmed. All berly, and another one obtained by Thomas concur.

Allen, and King and Coberly and the de

fendant Ransom became the purchasers. GANTT, J., concurs. SHERWOOD, J., con- These judgment creditors were all depositors curs, except on the point as to the necessity of Buck & McCrosky, and their judgments of instruction on good character.

were recovered upon unpaid deposit accounts. The plaintiff commenced this suit in 1890, to foreclose the two deeds before

mentioned, treating them as mortgages, STATE SAV. BANK OF ST. JOSEPH v.

making Buck defendant. King, Ransom, BUCK et al.

and Coberly were made defendants on their (Supreme Court of Missouri. June 18, 1894.)

own motion. In their answers they set up FRAUDULENT CONVEYANCES –WITHHOLDING DEED title acquired in the manner before stated, FROM RECORD-SUBSEQUENT CREDITORS.

and pray for a decree setting aside the Absolute deeds given by one banking

deeds on the ground that the deeds were house to another as security for loans and discounts, and withhell from record for three years,

fraudulent as to the creditors of Buck & Mcso as not to injure the debtor's credit, are, as Crosky. They make the failure to record a matter of law, fraudulent as to subsequent

the deeds for three years in one case and creditors.

two years in the other a leading factor in In banc. Appeal from circuit court, Clin- their prayer for affirmative relief. ton county; James M. Sandusky, Judge. The record discloses the following further Action by the State Savings Bank of St.

facts: From 1882 to the 5th December, 1887. Joseph against Harvey S. Buck and others

the plaintiff loaned Buck & McCrosky large to foreclose two mortgages. There was a

sums of money, and during that time redisjudgment for plaintiff, and defendants ap

counted notes which the latter had taken in peal. Reversed.

the course of their banking business. On Huston & Parrish, for appellants. Cas- the last-mentioned date Buck & McCrosky teel & Haynes, M. A. Reed, Porter & Wood- owed the plaintiff $78,613. This indebtedson, and Chas. E. Pratt, for respondent. ness consisted of notes of Buck & McCrosky

to the amount of $50,000, an overdraft of BLACK, J. The plaintiff is a banking cor- $19,363, and rediscounts collected by them poration doing business at the city of St. to the amount of $9,250. In addition to this Joseph. The defendants Harvey S. Buck indebtedness, the plaintiff held rediscounts and Thomas G. McCrosky were partners, to the amount of $50,000, payment of which and as such carried on a private banking had been guarantied by Buck & McCrosky. business at Stewartsville, in Dekalb coun- Mr. France, the president of the plaintiff ty, having a reported capital in that busi- bank, testified that he received a letter fron) ness of $25,000. They also dealt largely in a bank at Kansas City, on the morning of lands and live stock. In November, 1884, the 5th December, 1887, making inquiry as Buck executed, acknowledged, and delivered to the financial standing of McCrosky. He a deed conveying to plaintiff a parcel of land says Buck came to his bank on that day and in Stewartsville for the recited consideration asked for a further loan. Mr. France then of $9,000; and in November, 1885, he con- learned for the first time that McCrosky had veyed to the plaintiff another lot in the same withdrawn from the firm of Buck & Mcplace, and also 111 acres of land adjoining Crosky. Upon further inquiry, he found the town. The town property so conveyed Buck was in a failing condition. He refused: included the banking house of Buck & Mc- to make further advances, and demanded a Crosky and a block of buildings known as settlement. He and Buck then made a setthe opera house property. The lots and tlement, whereby Mr. France, for his bank, land have an estimated value of about $13,- took the following property at the following 000. Though the deeds were absolute in prices: Maple avenue farm, $22,000; Cowform, they were accepted and held by the ley county land, Kansas, $4,800; Kingman plaintiff as collateral security for any ad- county land, Kansas, $2,500; lot in Stewartsvances it might thereafter make to Buck & ville, $700; McCrosky notes, $42,000; other McCrosky, either by way of loan and over- notes, $3,370. This left a balance of over drafts or rediscounts. The deeds were not $3,000 due on the $78,613, which balance recorded until the 6th November, 1887, two was then canceled. The plaintiff still re and three years after their respective dates. tained the two deeds now in question as seOn that day Buck & McCrosky failed; and curity for the rediscounts, amounting to $50,Buck, who had recently acquired the bank- 000. The trial court found,-and the finding interest of McCrosky, made a voluntary ing is not questioned here,—that Buck & Ma assignment for the benefit of his creditors. Crosky were indebted to the plaintiff in the On the 7th December, 1887, the defendant sum of $27,819.71 by reason of the insolKing attached the property in suit, and vency of the makers of some of the redisthereafter obtained judgment against Buck counted notes. After the settlement had & McCrosky for over $12,000. The property been concluded, and on the same day, Buck was sold under this judgment, and under made the voluntary assignment.

As showing the course of business between King and Coberly knew nothing about the the plaintiff and Buck & McCrosky, it may unrecorded deeds held by the plaintiff, but be stated here that at the time of the settle supposed Buck was the owner of the propment the plaintiff held deeds for the Maple erties thereby conveyed, and of which he at avenue farm, the Cowley county land, and all times had possession. Coberly obtained the Kingman county land. These deeds security, by way of a chattel mortgage, on were out and out conveyances in form, the evening before the assignment, out of though they had been previously taken and which he realized the sum of $4,800. were held as collateral security. They were From this evidence it cannot be said the made absolute conveyances by the terms of deeds were withheld from record for the purthe settlement. The McCrosky notes, amount- pose of injuring or deceiving other persons. ing to $42,000, were notes given to Buck for It fails to show any fraudulent purpose or lands conveyed by him to McCrosky a few evil motive on the part of the plaintiff or days before the settlement. These notes Buck & McCrosky. The evidence is conflictwere secured by liens on the lands so pur- ing on the issue whether there was an archased by McCrosky. The evidence shows | rangement between plaintiff and Buck & Mcthat plaintiff from time to time obtained Crosky to the effect that the deeds were not deeds from Buck & McCrosky, other than the to be recorded. There is no claim made that two now in question, which were absolute the failure to record them was through any in form, but taken as security, and were nev- oversight or neglect. They were certainly er recorded. They were, however, surren- withheld by design, and we cannot escape dered, and other security taken in their stead. the conclusion that they were not recorded With respect to the failure to record the two because of some understanding to that effect. deeds now in dispute, Mr. France testified To have recorded them would have placed that there was no agreement that they should Buck & McCrosky in an embarrassed situanot be recorded; that he simply took them tion. The reason assigned by Mr. France to and made advances on them whenever he Mr. Henry for not recording them was a saw fit to do so. On cross-examination he good one. There was no agreement that the said he did not record them sooner because deeds should be withheld for any specified he did not know Buck was in financial time, but we feel bound to say there was an straits; that he believed Buck & McCrosky | understanding that they should not be rewere honest, and would not sell or incumber corded until Mr. France regarded it necesthe property while he held the deeds. On re- sary to record them, for the protection of his examination he said he did not record them bank. In reaching this conclusion, we lay because he relied upon the declarations of more stress upon circumstances disclosed Buck & McCrosky that they would not in- than we do upon particular expressions used cumber the property without paying off the by the witnesses while on the witness stand. indebtedness or substituting other collaterals, The title of a buna fide grantee or mortgaand for the further reason that to record gee is good against creditors at large of the them would lead to considerable trouble, in grantor or mortgagor, though the deed or this, that he would have to call a meeting of mortgage is not recorded. Sappington v. the board of directors to have releases exe- Oeschli, 49 Mo. 247. A person incurs no pencuted. The defendant called L. F. Henry, alty for a mere failure to record his deeds, who testified that he was a depositor with save such consequences as are provided for Buck & McCrosky; that after the failure he by the recording acts; and the mere failure was appointed one of a committee to look to record a deed or mortgage is not even up the condition of the bank affairs; that he evidence of fraud. Indeed, we may go fursaw and had a conversation with Mr. France. ther: There is nothing wrong or fraudulent He says he told Mr. France he could not in an agreement between grantor and gran. understand why the deeds had been kept tee to withhold a deed from record, unless off the record, to which Mr. France replied: the agreement is made to deceive others, or "Well, Buck asked me not to put them on has that effect. But if the delay is the whole record; that it might injure his business." or a part of a scheme to hinder, delay, or deIt appears the defendant King examined the fraud creditors, the deed will be void as to records in the recorder's office of Dekalb creditors. Walsh v. Chambers, 13 Mo. App. county about a month before the assign- 309. It was held long ago that “a deed not ment, to see what property Buck & McCros. at first fraudulent may afterwards become so ky owned. This examination was made in a by being concealed, or not pursued, by which hasty way, by running over the index to the means creditors are drawn in to lend their deeds and mortgages. He found nothing money." Hungerford v. Earle, 2 Vern. 261; suspicious, and continued his deposit account Hildreth v. Sands, 2 Jonns. Ch. 35. "A deed A month or so before the assignment, Cober- not at first fraudulent may become so by bely became suspicious, and called upon Buck | ing concealed, because by its concealment for a statement. Buck said he owned the persons may be induced to give credit to the property now in dispute, the Maple avenue grantor. In such case the use that has been farm, and other lands which he named. made of it relates back, and shows the intent With these statements, Coberly let his ac- with which it was made. The omission to count. amounting to about $10,000, stand. place a deed on record, or leaving it in the

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