Pritchett v. Pollock
| Decision Date | 21 July 1887 |
| Citation | 82 Ala. 169,2 So. 735 |
| Parties | PRITCHETT v. POLLOCK AND ANOTHER. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Wilcox county.
Trial of the right of property.
The facts of the case are fully set out in the opinion of the court. The charge given at the instance of the plaintiffs in attachment, J. Pollock & Co., appellees in this court referred to in the opinion, is as follows: (1) If the jury believe, from the evidence, that the sale of McCaskey & Ratcliff to Pritchett was made by them for the purpose of paying preferred creditors, and that they applied the proceeds of such sale, or a portion thereof, to the payment of such preferred creditors, and McCaskey & Ratcliff were at the time insolvent, and if the jury find that Pritchett had knowledge of such insolvency and purpose, or had such information as to have put him on inquiry, which, if followed up, would have led to the discovery of such intention, then the sale to Pritchett was void, and the jury must find for the plaintiffs in this case.
Watts & Son and J. N. Miller, for appellant.
Pettus & Pettus and Toulmin, Taylor & Prince, contra.
There does not appear to be any controversy as to the facts of this case. The witnesses are substantially agreed as to every material question. J. Pollock & Co. were attaching creditors of McCaskey & Ratcliff, who have been partners in merchandise. The amount and bona fides of their claim are not disputed. It antedated the conveyance to Pritchett after noticed. Pritchett interposed a claim to the property attached, and a trial at law ensued, called in our jurisprudence a "trial of the right of property." There were verdict and judgment for the plaintiffs in attachment, and Pritchett, the claimant, takes this appeal. McCaskey & Ratcliff, on January 7, 1886, executed a conveyance, in form a bill of sale, by which they conveyed to Pritchett all their stock of goods, wares, and merchandise of every kind and description, in the stores occupied by them in the town of Camden; and also their iron safe, together with all the notes, accounts, mortgages, claims, and demands of every kind due the said firm of McCaskey & Ratcliff, except such as had theretofore been transferred to the firm of Robins, Wilson & Co., of the city of Mobile. The recited consideration of this conveyance was the sum of $10,025.56 in hand paid by Daniel S. Pritchett, $6,625.56 indebtedness of McCaskey & Ratcliff to said Pritchett, and $3,600 in cash paid by said Pritchett to McCaskey & Ratcliff. It is not disputed that this cash payment was made, and Pritchett thereupon took possession of the property purchased.
The alleged indebtedness of $6,625.56 to Pritchett consisted of the following loans of money, with interest computed, and for which notes had been given in the firm name:
Note, October 23, 1884, ..... $ 500 00
Note, March 18, 1885, ....... 2,000 00
Note, December 31, 1885, .... 1,000 00
-These payable to D. S. Pritchett.
The following notes made by the firm, payable to J. C. Pritchett, but transferred to D. S. Pritchett:
Note, January 17, 1885, ................................................ 545 50
Note, December 31, 1885, .............................................. 500 00
---------
$4,545 50
Interest, about ..................................................... 200 00
---------
An individual note of Ratcliff to D. S. Pritchett, on which McCaskey
was in no way liable, was put in as part consideration ............ 1,510 00
Interest on this about $235.
There was also a note given by McCaskey in his individual name,
payable to D. S. Pritchett, dated December 3, 1885, .................. 400 00
---------
$6,655 50
It will be observed that, taking the items furnished in the testimony, and computing interest on them, the sum of them was then about $290 in excess of the $6,625 stated in the bill of sale. The result is that the recited consideration of the bill of sale, as claimed in virtue of past indebtedness, is about $1,880 in excess of the sum of the debts contracted in the firm name.
No testimony is offered tending to show that the firm was liable for, or in any way had the use of, the $1,510 for which the Ratcliff note was given. The testimony disproves such use. As to the note given by McCaskey for $400, Pritchett testifies as follows: "On the third of December, 1885, he loaned John W. McCaskey $400, and took his note therefor." McCaskey's testimony in regard to this transaction is as follows: "That witness borrowed $400 from said Pritchett on the third of December, 1885, and gave his individual note to said Pritchett therefor; and which sum witness put into the business of said firm of McCaskey & Ratcliff." This is all the testimony bearing on this item. It is insufficient to fasten it as a charge on the partnership, for the following reasons: First. The loan was made to McCaskey, and his individual note taken for it, while for the other loans made, both before and after that time, the notes of the firm were taken. Second. The individual debt of McCaskey to the firm of McCaskey & Ratcliff was greater by near $250 than was the individual indebtedness of Ratcliff at the time the sale was made. This furnishes a reason why he should contribute to the funds of the then embarrassed firm, at least to the extent of his excess of indebtedness. Third. Putting the money into the business does not necessarily imply that it was placed there as partnership effects, without any claim by McCaskey of an individual credit therefor. Had Pritchett sued the firm for this $400, and offered in support of his claim only the testimony set forth in the transcript and copied above, it would have been insufficient to fasten a partnership liability on them. The legitimate consideration, then, which Pritchett paid in the purchase, was-
In past due indebtedness, ..................... $ 4,745 50
Cash at time of purchase, ....................... 3,600 00
----------
Total, .................................... $ 8,345 50
The value of things purchased was"
Stock of merchandise, ......................... $ 6,000 00
Solvent claims, ................................. 4,157 55
Collectible, ...................................... 432 98
10 per cent. of bad claims, yet collectible, ...... 197 17
----------
Total, .................................... $10,787 70
Difference, ................................. 2,442 20
We prefer, however, not to place our ruling on the insufficiency of the consideration.
Before and at the time this sale was made McCaskey &...
To continue reading
Request your trial
-
Manchuria S.S. Co. v. Harry G.G. Donald & Co.
... ... constructive, and renders the transfer liable to be avoided ... at the instance of creditors. Stokes v. Jones, 18 ... Ala. 734; Pritchett v. Pollock, 82 Ala. 169, 2 So ... 735; McDowell v. Steele, 87 Ala. 493, 6 So. 288. In ... Howell v. Carden. 99 Ala. 100, 109, 10 So. 640, ... ...
-
Wade v. Brantley & Crawley Const. Co.
... ... a fraud upon partnership creditors." Goetter v ... Norman, 107 Ala. 585, 594, 19 So. 56, 58; Pritchett ... v. Pollock, 82 Ala. 169, 2 So. 735 ... But if ... the partnership is not insolvent, the parties who collect ... their individual ... ...
-
In re Estate of Wigginton
... ... Cary, 4 Woods, U.S.C. C. 663; Wilson ... v. Robertson, 21 N.Y. 537; Menagh v. Whitwell, ... 52 N.Y. 146; Keith v. Finke, 47 Ill. 272; Pritchett ... v. Pollock, 82 Ala. 169 ... Burgess, ... J. Barclay, J., concurring ... ... [122 ... ...
-
Powell v. Henry
... ... 561, 8 South. Rep. 68; Moody v ... Walker, 89 Ala. 619, 7 South. Rep. 246; Oil Co. v ... Perry, 85 Ala. 158, 4 South. Rep. 635; Pritchett v ... Pollock, 82 Ala. 169, 2 South, Rep. 735. The assignments ... of error which are directed against the failure of the court ... to assess and ... ...