29 F. 725 (N.D.Iowa. 1887), Osborne v. Barge

Citation:29 F. 725
Party Name:OSBORNE and others v. BARGE and others.
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 725

29 F. 725 (N.D.Iowa. 1887)

OSBORNE and others

v.

BARGE and others.

United States Circuit Court, N.D. Iowa, Central Division.

January Term, 1887

Martin & Wamback and Wright & Farrell, for complainants.

Kamrar & Borye and W. J. Covil, for defendants.

SHIRAS, J.

The bill filed in this cause sets forth that on the eighth day of November, 1886, the firm of Barge & King, being indebted to complainants in the sum of $2,529.31 for goods sold, executed their certain promissory note, payable on or before November 9, 1886, for the sum named; and to secure the payment thereof also executed a chattel

Page 726

mortgage upon the property of the firm, the same being signed 'BARGE & KING, by W. T. KING. ' To the bill filed herein, for the purpose of foreclosing this mortgage, Barge & King, B. F. Barge, W. T. King, and Robert Fullerton are made parties defendant; and B. F. Barge and Robert Fullerton answer the bill, setting forth that on the sixth day of November, 1886, the firm of Barge & King, composed of B. F. Barge and W. T. King, being wholly insolvent, the partners mutually agreed that a general assignment, for the benefit of their creditors, should be made by the firm to Robert Fullerton, as assignee; that the partners went to the office of an attorney, and directed him to prepare the necessary papers to complete such assignment; that the said W. T. King prepared and signed the schedule of assets and liabilities, intended to be attached to the deed of assignment when prepared; and that about 8 o'clock A.M. of November 8th the said assignment was completed, the firm name being signed to the deed by B. F. Barge. It is also averred that the mortgage to complainants was not executed until about 10 o'clock A.M. of November 8th, at which time the firm of Barge & King had ceased to exist; that said King had no authority to execute the mortgage in the firm name, the same being done without the knowledge or assent of said Barge; and that the mortgage is consequently invalid. Fullerton, the assignee in the deed of general assignment, sets forth the execution and delivery of the deed, his acceptance of the trust thereby created, and avers that, as against such assignment, the mortgage is of no effect. It appears, therefore, that, the firm being insolvent, one partner executed a deed of general assignment, and the other a chattel mortgage to the complainants; and the exceptions to the answer...

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