Ferst v. Powers

• Decision Date: 02 August 1900
• Citation: 36 S.E. 744,58 S.C. 398
• Parties: FERST et al. v. POWERS et al.
• Court: South Carolina Supreme Court

36 S.E. 744

58 S.C. 398

FERST et al. v. POWERS et al.

Supreme Court of South Carolina

August 2, 1900

Appeal from common pleas circuit court of Laurens county; O. W Buchanan, Judge.

Action by M. Ferst's Sons & Co. and others against John H. Powers and another to recover for goods sold and to set aside an assignment, as in fraud of creditors. An attachment was issued in aid of the action, and from an order setting the same aside the plaintiffs appeal. Reversed.

The following is the complaint referred to in the opinion:

"The State of South Carolina, County of Laurens. Court of Common Pleas. Joseph Ferst, Aaron Ferst, and Leon Ferst, partners doing business under the firm name of M. Ferst's Sons & Co., and J. J. Maddox and J. E. Maddox, partners doing business under the firm name of J. J. & J. E. Maddox Plaintiffs, against John H. Powers and John W. Fowler, Defendants. The plaintiffs above named, by Irby & Babb and Graydon & Giles, their attorneys, complaining of John H. Powers and John W. Fowler, the defendants aforesaid, allege: (1) That the said plaintiffs, Joseph Ferst, Aaron Ferst, and Leon Ferst, are and were at the times hereinafter set forth, partners doing business under the firm name of M. Ferst's Sons & Co. (2) That the plaintiffs J. J. Maddox and J. E. Maddox are, and were at the times hereinafter set forth, partners doing business under the firm name of J. J. & J. E. Maddox. (3) That the defendant John H. Powers was until about the 13th day of December, A. D. 1899, engaged in the mercantile business in the city of Laurens, in the county and state aforesaid. (4) That at divers times during the years 1898 and 1899 the said firm of M. Ferst's Sons & Co. sold and delivered to the said John H. Powers sundry articles of goods, wares, and merchandise, by open account, on which there is now due and unpaid the sum of nine hundred and sixty-seven dollars and seventy-five cents. (5) That at divers times during the years 1898 and 1899 the said firm of J. J. & J. E. Maddox sold and delivered to the said John H. Powers sundry articles of goods, wares, and merchandise, by open account, on which there is now due and unpaid a balance of four hundred and fifty-six dollars and seventy cents. (6) That on or about the 13th day of December, A. D. 1899, the said John H. Powers transferred and delivered to the defendant John W. Fowler his entire stock of goods in his store in the said city of Laurens, consisting of staple and fancy groceries and other articles. (7) That the plaintiffs are informed and believe that the pretended consideration for the said transfer and delivery of the said stock of goods was an agreement by the said John W. Fowler that he would satisfy a claim of four hundred dollars alleged to be due and owing him, the said John W. Fowler, by the said John H. Powers for rent of the store lately occupied by him in the said city of Laurens, and that he, the said John W. Fowler, would pay sundry claims alleged to be due by the said John H. Powers to the following named parties, to wit: To one W. A. Todd, lately a clerk in the store of the said John H. Powers, the sum of five hundred dollars, alleged to be due to him by the said John H. Powers on his salary as such clerk; to the People's Bank of Laurens, a certain promissory note, the amount of which is not known to the plaintiffs; to Bailey's Bank of Clinton, a certain promissory note, the amount of which is not known to the plaintiffs; and to the Bank of Laurens a certain other note, the amount of which is not known to the plaintiffs. (8) That the plaintiffs are informed and believe that the said stock of goods was worth, at cost price, the sum of eighteen hundred or two thousand dollars, and that the said John H. Powers claims to have sold the said stock of goods to the said John W. Fowler at eighty per cent. of their said cost price. (9) That the plaintiffs are informed and believe that at the time of the said alleged sale the said John H. Powers was totally insolvent, and had not enough property to pay the debts due and owing by him. (10) That the plaintiffs are informed and believe that the amount now claimed to be due and owing to the said John W. Fowler by the said John H. Powers for rent is larger than the amount actually due, and that the amount actually due is only about two hundred dollars; and the plaintiffs also are informed and believe that the amount alleged to be due to the said W. A. Todd by the said John H. Powers is much greater than the sum actually due to him. (11) That the plaintiffs are informed and believe that the said alleged sale was made for a consideration much less than the real value of the said stock of goods, that it was in part voluntary and pretensive, and that it was made and accepted with the intent and purpose to hinder, delay, defeat, and defraud the creditors of the said John H. Powers, and especially these plaintiffs, who are the largest creditors of the said John H. Powers, as they are informed and believe. (12) That the plaintiffs are informed and believe that the said alleged sale was made and accepted with the intent and purpose to give to the said John W. Fowler, W. A. Todd, the People's Bank, Bailey's Bank, and the Bank of Laurens a fraudulent and unlawful preference over the other creditors of the said John H. Powers; and they are advised by their counsel that the same is in effect an assignment with preferences, and is contrary to the assignment acts of this state. Wherefore the plaintiffs demand judgment against the defendants: First. That the plaintiffs M. Ferst's Sons & Co. have judgment against the defendant John H. Powers for the sum of nine hundred and sixty-seven and 25/100 dollars. Second. That the plaintiffs J. J. & J. E. Maddox have judgment against the defendant John H. Powers for the sum of four hundred and fifty-six and 70/100 dollars. Third. That the said alleged sale of the said stock of goods be set aside and be declared to be fraudulent and void. Fourth. That the plaintiffs may have such other and further relief as to the court may seem to be just and property. Irby & Babb, Graydon & Giles, Plaintiffs' Attorneys."

The following is the order of the circuit judge setting aside the attachment:

"This cause came before me on a motion at chambers to set aside for an attachment given by the clerk of court for Laurens county. The motion is made on several grounds. The allegations of fraud in the affidavits make out a prima facie case, so far as such a claim could well be made such by conclusion. If unrebutted, the inference of improper conduct would be strong. The grounds for setting aside are based upon several objections, growing out of alleged defects in filling the affidavits, making up the undertaking, alleged insufficiency of the matters stated in the affidavits, and in failing to state facts showing fraudulent disposal of property or a fraudulent assignment of the same, and lastly because attachment will not lie under such an alleged cause of action. To understand the effect of this last objection, the complaint must be referred to. There are two plaintiffs, it will be noticed,--Ferst's Sons & Co. and J. J. & J. E. Maddox; two independent claims for goods sold, or alleged to have been sold, and delivered to John H. Powers, who was until about 13th December, 1899, engaged in mercantile business in the city of Laurens. That on that day (the said 13th day of December, 1899) the defendant Powers transferred and delivered over to Fowler, his co-defendant, his entire stock of goods under an agreement (?) whereby the said Fowler, it was claimed, was to satisfy a claim of four hundred dollars alleged to be due and owing to said Fowler for the rent of the store lately occupied by him, and in addition the said Fowler was to pay sundry claims alleged to be due by Powers to the clerk, W. A. Todd, to the People's Bank of Laurens, to Bailey's Bank of Clinton. It is charged that the goods so conveyed were worth the sum of eighteen hundred or two thousand dollars, and the said Powers claimed to have sold the stock to Fowler at eighty per cent. of the cost price. That the said John Powers was totally insolvent, and had not any property to pay the debts due and owing. They further say that the amount due to Fowler and to Todd was not as much as was claimed by Powers; that it was, in fact, voluntary and pretensive; and that it was made and accepted with the intent and purpose to hinder, delay, defeat, and defraud the creditors of Powers, and especially these two firms, plaintiffs, who are the largest creditors of the said John Powers. It was charged that the said sale was made and accepted with the intent and purpose to give to the said John W. Fowler, W. A. Todd, the People's Bank, Bailey's Bank, and the Bank of Laurens a fraudulent and unlawful preference over the other creditors of the said John H. Powers, and they are advised by their counsel that the same is in effect an assignment and preference, and contrary to the assignment acts of this state; and after demanding judgment for the amounts claimed to be due each of the plaintiffs, respectively, it is further demanded that the said alleged sale of the said stock of goods be set aside and declared to be fraudulent and void, and that the plaintiffs may have such other and further relief as to the court may seem just and proper. It is to be observed that W. A. Todd, Bank of Laurens, Bailey's Bank, and People's Bank are not made parties.

"The objection to the form of the complaint and its character is material here; for if there was no cause of action, or an appropriate cause of action, there could not be a proper attachment under it. It may be observed that, giving the complaint the most liberal construction, it is rather to be construed as demanding an

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