Lambeth v. McClinton, Case No. 1902

• Decision Date: 20 November 1885
• Docket Number: Case No. 1902
• Citation: 65 Tex. 108
• Court: Texas Supreme Court
• Parties: T. A. LAMBETH ET AL. v. T. E. MCCLINTON ET AL.

65 Tex. 108

T. A. LAMBETH ET AL.

v.T. E. MCCLINTON ET AL.

Case No. 1902

Supreme Court of Texas.

Nov. 20, 1885.

APPEAL from Delta. Tried below before the Hon. E. B. Perkins, special judge.

On June 15th, 1884, Mayer & Kahn, a wholesale house of Galveston, sued out an attachment against Harrison & Robertson, of Delta county, Tex., for $803, for goods bought in March, 1884, on four month's credit, and had same levied upon a lot of saloon goods and fixtures in Cooper, that were transferred on June 11, 1884, by Harrison & Robertson, to T. E. McClinton. The suit was prosecuted to judgment, attachment lien foreclosed, and the goods sold and proceeds of sale applied to the payment of the debt Harrison & Robertson were owing Mayer & Kahn. The goods transferred and levied on was all the property Harrison & Robertson owned subject to execution. The consideration of the sale to McClinton was $300 due him by them, $29 they owed McClinton Bros., and $500 they owed T. A. Lambeth, and $100 they owed Eppstein, of Sherman, and a note for $494.19 that McClinton executed to Harrison & Robertson or order, due one day after date, dated June 10, 1884, which was paid by McClinton to the payees September 10, 1884. He also paid Eppstein and Lambeth some months after the levy. On the day of the transfer Harrison & Robertson were indebted to parties around Cooper in small sums, and for attorneys' fees and court costs, besides the $803 due Mayer & Kahn, $500 due Lambeth, $329 due the McClintons and $150 due Eppstein, in all $1,782. They sold out to McClinton at original cost, less carriage of the goods, and $25 off the billiard tables, McClinton buying by the original invoices. The most of the Mayer & Kahn goods were in stock when McClinton purchased. Each of the invoices had the name of the purchaser, date of purchase and terms printed or written upon it.

He brought suit against T. A. Lambeth, who was sheriff of Delta county, and his bondsmen, and recovered judgment for $1,379.30, and the sheriff appealed.

First special charge refused was: “If the jury believe from the evidence that McClinton purchased the stock and fixtures of the saloon of Harrison & Robertson, the consideration being part indebtedness to him, McClinton, and part by a promissory note for about $500, at a time when Harrison & Robertson were actually indebted to Mayer & Kahn, the attaching creditors, and the knowledge of such indebtedness could have been obtained by McClinton in the ordinary and prudent pursuit of such purchase, then the legal effect of said consideration by said promissory note, was to hinder and delay creditors, and the purchase was null and void as to attaching creditors; and if the jury believe Mayer & Kahn attached the same stock and fixtures for a valid debt after said purchase by McClinton, then the jury will find for the defendant.” The second and third special charges were to the same effect.

Templeton & Templeton and Terhune & Yoakum, for appellants, on the validity of the sale, cited: Greenleve v. Blum, 59 Tex., 124;Seeligson v. Brown, 61 Tex., 114; Bateman v. McCreight, Tex Law Rev., vol. V, No. 37, p. 557; Fraim v. Frederick, 32 Tex., 294;Huyler v. Dahony, 48 Tex., 234. On the refusal of the special charge, they cited: Greenleve v. Blum, 59 Tex., 126;Seeligson v. Brown, 61 Tex., 114;Humphreys v. Freeman, 22 Tex., 49;Fraim v. Frederick, 32 Tex., 307;Huyler v. Dahony, 48 Tex., 234.

On the charges of the court, they cited: Martel v. Somers, 26 Tex., 551;Hauley v. Bullock, 29...