Bailey v. Kansas Manufacturing Company

Citation3 P. 756,32 Kan. 73
PartiesJ. W. BAILEY v. THE KANSAS MANUFACTURING COMPANY
Decision Date01 January 1884
CourtUnited States State Supreme Court of Kansas

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Atchison District Court.

JANUARY 27, 1882, The Kansas Manufacturing Company brought its action against A. Macdonald, on seven promissory notes not then due and procured an order of attachment, which was levied on a stock of hardware. The stock of hardware was mortgaged by A Macdonald, and the mortgage was assigned to J. W. Bailey. On July 7, 1882, J. W. Bailey filed his motion to be allowed to interplead. The court sustained the motion, and on August 5, 1882, the interplea was filed, setting up a note executed by A. Macdonald to his wife, Maria Macdonald, for $ 1,500, dated April 28, 1879, and also a chattel mortgage, executed January 19, 1882, by A. Macdonald to his wife, to secure said note--which chattel mortgage was filed for record on the same day, at five o'clock P. M. The interplea also set out the attachment proceedings against A. Macdonald, and alleged that the latter was indebted to the Weir Plow Company, and that on February 16, 1882, Maria Macdonald, to secure such indebtedness, as far as the same would go, assigned the note and mortgage to J. W. Bailey, who was the agent of the Weir Plow Company, and who took the note and mortgage to secure its claim.

The prayer of the interplea was for judgment against A. Macdonald for $ 1,500, with interest, and that the chattel mortgage should be declared a first lien upon the property therein described. On August 10, 1882, the Kansas Manufacturing Company filed its answer to the interplea of J. W. Bailey, and thereafter J. W. Bailey filed a general reply to this answer.

The action was tried at the June Term of the court for 1883, by the court, a jury being waived. Upon the evidence, the court found the following conclusions of fact:

"1. For fifteen years or more, last past, the defendant and Maria Macdonald have been husband and wife, residing at Atchison Kansas, with their children, and during said time, up to the spring of 1879, the defendant was a clerk in the hardware business. About fourteen years ago, said Maria Mac-dald received about $ 1,000, as her share of her father's estate, and part of the same was invested in lots in Atchison for a homestead, and the title thereto placed in her name. The homestead was improved in part with said money, and in part by means derived from defendant's earnings. No account was ever kept of the money furnished by either, the making of the improvements and the keeping of the family being contributed to from the funds of either, which were used in common--the defendant's earnings being little, if any, more than sufficient to support his family while he was a clerk. Some years later she received about $ 1,000 from a brother, and an eighty-acre tract of land, in this county, was bought for $ 600. Some lots in Atchison were also bought in her name, for $ 300. In 1879, or in 1880, she also received between $ 500 and $ 1,000 from her brother-in-law. No account was ever kept up to 1882, between the defendant and his wife, as to the sum or sums furnished by either for any purpose, but all the investments in real estate, except one lot, were made in her name.

"2. About March, 1879, said homestead was sold, and the defendant, with the consent of his wife, took $ 1,500 of the proceeds and embarked in the hardware business on his own account. This was all the capital that he then had, but between that time and January, 1882, he received $ 1,480 more, being of the proceeds the sale of said eighty-acre tract, and said lot in Atchison, that stood in his wife's name, all of which real estate was sold at a large profit, more than double its purchase price. This aggregate of $ 1,480 was received in payment at different times, each of which was entered upon the cash-book of the business as received from him, and placed to his credit upon the ledger of the business. His wife knew that said money derived from the sale of said homestead and other real estate constituted his only capital, and that he was using the same in his own name without any credit to her whatever; and the defendant made no express promise to pay said money back to his wife, except as hereinafter stated.

"3. In 1881, another lot in Atchison was purchased in her name, with a view of building a residence thereon for a home. Only $ 50 was paid on the lot, but a contract was entered into with Cole and Shafer by which they agreed to build a house on said lot for $ 825, and to take in payment hardware out of the defendant's store. They proceeded with said building, and up to January, 1882, they had obtained hardware from the defendant's store amounting to $ 639.80, but said building was not completed. Cole and Shafer were debited with the amount of said hardware.

"4. In the fall of 1881, the defendant became embarrassed. He had purchased a large stock, and was indebted therefor about $ 10,000. He went east and to neighboring cities where he was indebted. He was then insolvent, but he misrepresented his financial condition to his creditors, and procured from most of them an extension of time.

"5. Early in January, 1882, the defendant contemplated a failure in business, and he and his book-keeper set about to save something for the defendant's wife and family. A journal and a ledger account was opened with Maria Macdonald, January 6, 1882, and the several sums, aggregating $ 1,480, appearing in the cash-book as received from A. Macdonald and journalized and posted to his credit, were also journalized and posted to the credit of Maria Macdonald, the journal and entries both stating the dates as in the original entries in the cash-book, which were not altered, and the journal entry having an explanatory note to the effect that the original credits were erroneously made. The amount of Cole and Sharer's account was also debited to said Maria Macdonald. At the same time, the said promissory note, (non-negotiable in form,) for $ 1,500, a copy of which is set forth in the interplea of J. W. Bailey, was drawn up and signed by the defendant, and dated back to about the time that the defendant engaged in business, and his wife made the indorsement thereon as follows: This note is renewed for two years more, but with interest.--(Signed) MARIA MACDONALD.' Said note was intended to cover the amount of money derived from the sale of said homestead and put into the business at the beginning, in 1879.

"6. On January 17, or 18, 1882, said Maria Macdonald went to A. F. Martin, an attorney at law at Atchison, and handed him said promissory note and told him she wanted it secured by a chattel mortgage on the stock of goods of the defendant. At said time A. F. Martin had in his hands for collection a claim of the Gibbs & Sterrett Manufacturing Company against said A. Macdonald, for $ 116.60. Said A. F. Martin, on or about January 17, or 18, 1882, conferred with said A. Macdonald, who talked about making a general assignment for the benefit of his creditors. He however agreed to execute chattel mortgages securing said claims, and on January 18, 1882, said A. F. Martin drew up the chattel mortgage of that date to Maria Macdonald, a copy of which (except the schedule) is annexed to the interplea of J. W. Bailey herein. A full schedule of the stock was annexed to the original mortgage. Said mortgage was not signed and executed by the defendant until the afternoon of January 19, 1882. At the same time, January 19, 1882, the defendant executed another mortgage of that date to said Gibbs & Sterrett Manufacturing Company upon said stock of goods, to secure its claim. Said mortgage had no schedule thereto, but referred to the schedule attached to said mortgage to Maria Macdonald. Both mortgages were handed to said A. F. Martin, and he took them to the office of the register of deeds of this county and had the same filed in said office at 5 o'clock P. M. of said day. The schedule described by items the entire stock of goods and everything connected with the business, showing a total valuation of $ 12,357.81; and the defendant had no other tangible property except household goods and a few other articles exempt from legal process. But the notes, book accounts and other choses in action were not included in said schedule.

"7. Before the final execution and delivery of said mortgages by the defendant to the said A. F. Martin for said Maria Macdonald and the Gibbs & Sterrett Manufacturing Company respectively, it had been fully agreed between the defendant and said A. F. Martin that said defendant should make a general assignment of all his property to said A. F. Martin, as assignee, for the benefit of all of the defendant's creditors; and early the next morning, January 20, 1882, the defendant executed such deed of assignment to said A. F. Martin, conveying to said A. F. Martin all of defendant's property, real and personal, including notes, book accounts and choses in action, and said stock of goods in trust for the equal benefit of all the defendant's creditors. Said A. F. Martin filed said deed of assignment in the office of the register of deeds for record at 9 o'clock A. M. on said 20th day of January, 1882, and he immediately got the key of said store from the defendant and took possession of said stock of goods as such assignee. In fact, the defendant closed the store on the evening of January 19, 1882, with a view to said assignment, and did not open it again next morning, but turned the key over to his assignee.

"8. About ten days or two weeks after the assignment, said Maria Macdonald indorsed said promissory note in blank and handed it to said A. F. Martin, so that it might be used in any way that was deemed...

To continue reading

Request your trial
17 cases
  • Durlacher v. Frazer
    • United States
    • Wyoming Supreme Court
    • December 17, 1898
    ... ... 194-210; 144 N.Y. 333.) ... The ... fact that the company retained possession of Bauman's ... property, the consideration of which ... ...
  • Calihan v. Powers
    • United States
    • Missouri Supreme Court
    • March 17, 1896
    ... ... H. Krum for appellants, Sonnenfeld Millinery Company and ... Adolph Rosenthal ...          (1) The ... judgment ... Shaw, 19 Mo.App. 274; Dodd v ... Hills, 21 Kan. 707; Bailey v. Mfg. Co., 32 Kan ... 73; Meredith Co. v. Smith, 8 N.H. 347; Brown ... ...
  • Moody v. Beggs
    • United States
    • Idaho Supreme Court
    • March 1, 1921
    ... ... 629; Woods v. Allen, 109 Iowa 484, 80 ... N.W. 540; Bailey v. Kansas etc. Co., 32 Kan. 73, 3 ... P. 756; Diggs v. McCullough, 69 ... ...
  • Sells v. Rosedale Grocery & Commission Co.
    • United States
    • Mississippi Supreme Court
    • March 18, 1895
    ... ... 1. The ... instruments executed by the grocery company were void because ... not executed by its duly authorized officers, in ... On the general proposition, see ... Lyons Hardware Co. v. Manufacturing Co., 86 Texas, ... 143; 35 P. 854; Sutton Mfg. Co. v. Hutchinson, 63 F ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT