Badgett v. Johnson-Fife Hat Co.

Decision Date14 February 1898
Docket Number939.
Citation85 F. 408
PartiesBADGETT v. JOHNSON-FIFE HAT CO.
CourtU.S. Court of Appeals — Eighth Circuit

This is an action by attachment by the Johnson-Fife Hat Company against J. D. Blosser, in which W. R. Badgett interpleaded claiming the property attached by virtue of a deed of general assignment made by Blosser to him prior to the attachment. A judgment against the interpleader was affirmed by the court of appeals for the Indian Territory and he brings the case on error to this court.

William T. Hutchings, for plaintiff in error.

John B Turner, and James B. Burckhalter (George B. Denison and N. B Maxey, on the brier), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

On the 9th of November, 1894, one J. D. Blosser, a merchant of Chelsea, Cherokee Nation, Indian Territory, executed and delivered a deed of assignment to the interpleader, W. R Badgett, conveying to him, in trust, the goods and merchandise in question. The deed conveyed all the property of the sad assignor for the benefit of creditors, with preferences, as was permissible under the statute regulating assignments applicable to that territory. This deed was delivered to the assignee perhaps the day following its execution, but the inventory and bond required by statute to be made out by the assignee were not filed with the clerk of the court until November 24, 1894. The deed of assignment contained the following provision: 'That the said Badgett shall first, and before taking possession of, or controlling, said property, comply with the law as to the inventory and bond, as provided in such cases. He shall then, pursuant to law, proceed to sell the goods, wares, merchandise, and fixtures, and to collect the notes and accounts and other indebtedness, and with the proceeds of said sales and collections pay to my creditors as follows.'

On the 16th day of November, 1894, the defendant in error, Johnson-Fife Hat Company, instituted suit against J. D. Blosser to recover a debt of $212.35, which action was aided by an attachment proceeding under which the goods and merchandise in question were seized. On May 9, 1895, W. R. Badgett, plaintiff in error, filed in said cause his interplea, claiming the ownership and possession of said property under the assignment aforesaid. On the issues tried between these parties to a jury there was a verdict and judgment against the interpleader. From that judgment an appeal was prosecuted to the court of appeals of the territory, where the judgment of the court below was affirmed. 38 S.W. 667. To reverse this judgment the interpleader brought the case to this court on writ of error.

The only questions presented for review, under the assignment of errors, arise on the giving and refusing to give certain instructions on the trial and as to the admission of certain evidence. The instruction refused is as follows:

'The court instructs the jury that the deed of assignment offered in evidence in this case is valid on its face, and vested the legal title to the property in controversy in this suit in the assignee named therein and the interpleader herein, W. R. Badgett, unless some fraud on the part of the assignor, J. D. Blosser, prior to or contemporaneous with the execution of the deed, known to and participated in by the assignee, W. R. Badgett, invalidated it. If, therefore, the deed of assignment in question was free from fraud at the time of its execution and delivery, no subsequent agreement between the assignor and assignee to disregard it, and no subsequent fraudulent acts on their part with respect to the assigned property, will invalidate it.'

The instructions given by the court complained of are as follows:

'The court instructs you that although there is a clause in the deed of assignment offered in evidence in this case which prohibits the assignee from taking charge or control of the property assigned until he had filed his inventory and bond as the law provides, yet if you believe from the evidence in this case that at the time the assignor, Blosser, delivered the deed of assignment to the assignee, Badgett, that he and the assignor entered into an agreement or understanding by which the assignee was to take possession of the assigned property before he filed his inventory and bond, and that the assignee, in pursuance of such understanding, did take charge of said property, either by himself or agent, before he filed his inventory and bond, that then such facts would render the assignment fraudulent and void in law, and you should find for the plaintiffs or attaching creditors. And in determining whether or not there was such an agreement or understanding between the assignor, Blosser, and the assignee, Badgett, you have a right to take into consideration all the facts and circumstances surrounding the case. And if you believe from the evidence and all the circumstances surrounding the case that there was such an understanding, you will find for the plaintiff or attaching creditors. The court instructs the jury that the deed of assignment offered in evidence in the case is valid on its face, and vested the legal title to the property in controversy in this suit in the assignee named therein, and the interpleader herein, W. R. Badgett, unless some fraud in law, either express or implied, on the part of the assignor, J. D. Blosser, prior to or contemporaneous with the execution of the deed, known to and participated in by the assignee, W. R. Badgett, invalidates it. If, therefore, the assignment in question was free from fraud, either express or implied, at the time of its execution and delivery, no subsequent agreement between the assignee and assignor to disregard it, and no subsequent fraudulent acts on their part with respect to the assigned property, will invalidate it.'

The statute of the state of Arkansas (section 305, Mansf. Dig., in force in the Indian Territory) contains the following provision:

'In all cases in which any person shall make an assignment of property, whether real, personal, mixed or choses in action, for the payment of debts; before the assignee thereof shall be entitled to take possession, sell or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising equity jurisdiction a full and complete inventory and description of such property; and also make and execute a bond to the state of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the clerk of said court: conditioned,' etc.

There was some evidence in the case tending to show that on the next day, which was Saturday, after the execution and delivery of the deed of assignment, the assignee went to the store at Chelsea and gave some directions to the clerk in charge thereof about taking an inventory of the stock of goods, and that on the Monday following said clerk went to where the assignee lived, and delivered to him the inventory and the key which he had to the store building. There was another key to this building,...

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6 cases
  • Solomon Dehydrating Company v. Guyton
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 31, 1961
    ...v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, 855, certiorari denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348; Badgett v. Johnson-Fife Hat Co., 8 Cir., 85 F. 408, 411; Little Rock & M. R. Co. v. Moseley, 8 Cir., 56 F. 1009, 1010; Silverman v. Travelers Ins. Co., 5 Cir., 277 F. 2d 257,......
  • State National Bank of Texarkana v. Birmingham
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    ...the point at issue as his instruction numbered 2, and given by the court, and he cannot now urge that on appeal. 67 Ark. 531; 132 Ark. 450; 85 F. 408; 88 Ark. 172; 93 Ark. 94 Ark. 524. Hanson's statement conplained of could not be prejudicial from the fact that Birmingham testified to the s......
  • Krienke v. Illinois Central Railroad Company
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 7, 1958
    ...when the same error is found in its own instructions. Little Rock & M. R. Co. v. Moseley, 8 Cir., 56 F. 1009, 1010; Badgett v. Johnson-Fife Hat Co., 8 Cir., 85 F. 408, 411; Spring Creek Drain. Dist. v. Greenawalt, 335 Ill. 147, 148, 166 N.E. 6. I.C. contends that Belt's instruction 2, as mo......
  • Skaggs v. Gypsy Oil Co.
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    • October 16, 1934
    ...error upon the giving of this instruction, or claim there was no evidence to support the giving of such instruction. Badgett v. Johnson Fife Hat Co. (C. C. A.) 85 F. 408. ¶23 In the case of Hutchins v. Richardson, 100 Okla. 80, 227 P. 432, this court held: "A party on appeal in the Supreme ......
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