Roop v. Herron

Decision Date13 November 1883
PartiesROOP v. HERRON.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Error from Gage county.

J. E. Bush, for plaintiff.

L. M. Pemberton, for defendant.

MAXWELL, J.

This is an action of replevin brought by the plaintiff against the defendant to recover certain goods levied upon by the defendant as sheriff under an order of attachment. On the trial of the cause the court found in favor of the defendant. The cause is submitted upon the following stipulation:

“It is hereby stipulated and agreed between the parties to this action that the following is a true statement of the facts: (1) That from January, 1882, John P. H. Jones and Omar De Land were partners doing business at Blue Springs, Gage county, Nebraska, under the firm name of Jones & De Land. (2) That on the twenty-fifth day of March, 1882, said partnership of Jones & De Land was dissolved by mutual consent; notice by publication in the Blue Springs Motor of said dissolution was given; said Omar De Land retired from said firm, and said John P. H. Jones continued the business in his own name, and kept all the goods belonging to said firm, and agreed with the said De Land to pay all the debts contracted by said firm. (3) At the time of dissolution of said firm of Jones & De Land, and at the time of contracting the debts to and buying the goods of King Bros. & Co., and borrowing the $250 from plaintiff as hereinafter stated, said firm of Jones & De Land was insolvent. (4) All the goods and property claimed by plaintiff in this action were purchased by said firm of Jones & De Land in January, February, and March, 1882, from said King Bros. & Co., of Chicago, Illinois, and from other creditors, and none of said goods have been paid for, and that they are all a part of the partnership goods received by said Jones from said firm of Jones & De Land at the dissolution of said firm, and all of said goods were obtained from said King Bros. & Co., who were induced to sell said goods to said Jones & De Land through fraudulent representations as to the amount of property owned by said firm of Jones & De Land, and said false representations were made by said Jones for the purpose of obtaining said goods now claimed by plaintiff in this action, but this plaintiff knew nothing about said fraudulent representations. (5) The goods claimed by plaintiff in this action are held by the defendant, who is sheriff of said county, under and by virtue of an order of attachment issued out of the district court of Gage county, Nebraska, and levied by said defendant sheriff on said goods at the suit of King Bros. & Co., which suit is brought in the individual names of members of said firm, against John P. H. Jones and Omar De Land, and all the property claimed by plaintiff, except the tea, tea caddies, and the boots, were purchased on or about March 1, 1882, by said firm of Jones & De Land from said firm of King Bros. & Co., and the firm of Jones & De Land is indebted to said firm of King Bros. & Co. in the sum of $801, for goods purchased by them of the said firm of King Bros. & Co., on or about March 1, 1882, to obtain pay for which said attachment suit is brought. (6) Said John P. H. Jones, during the continuance of the partnership of said Jones & De Land, to-wit, in the month of February, 1882, borrowed $250 from plaintiff, who took the individual note of said Jones for said debt. Said money was not used for the benefit of said firm of Jones & De Land, but for the sole benefit of said Jones. (7) On or about the fourth day of April, 1882, after one of the creditors of said firm of Jones & De Land had, with the plaintiff's knowledge and consent, taken possession of the goods sold by them to said firm of Jones & De Land in satisfaction of the purchase price of said goods, said John P. H. Jones, successor of said firm of Jones & De Land, delivered to plaintiff in this action the goods claimed by plaintiff herein before they were attached by defendant sheriff at the suit of King Bros. & Co. in full settlement of plaintiff's claim of $250, and said plaintiff has no list of said property except that copied by him from officer's return in said suit. (8) The property so delivered to plaintiff by said John P. H. Jones and herein claimed by plaintiff is worth $493.95, invoiced at the cost price of said goods without cost of carriage, and plaintiff herein, at the time said goods were delivered to him by said John P. H. Jones, knew that said goods formerly belonged to said firm of Jones & De Land, and that said firm and each of the members thereof was insolvent. That some of the grounds for attachment alleged in the affidavit on which said order of attachment issued are true.”

It will be seen from the admitted facts that Roop received this partnership property to the amount of nearly twice his claim, he at the time knowing it to be partnership property, and that the firm was insolvent. He was not, therefore, a bona fide purchaser. The question here presented was before this court in Till's Case, 3 Neb. 261. In that case, a firm doing...

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