Bayonne Knife Co. v. Umbenhauer

• Decision Date: 20 June 1895
• Citation: 18 So. 175,107 Ala. 496
• Parties: BAYONNE KNIFE CO. v. UMBENHAUER.
• Court: Alabama Supreme Court

18 So. 175

107 Ala. 496

BAYONNE KNIFE CO. v. UMBENHAUER.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Attachment suit by M. S. Umbenhauer against S. Kaufman. The Bayonne Knife Company intervened as claimant of the property. From a judgment for plaintiff on trial of right of property, the claimant appeals. Affirmed.

V. L Thompson, for appellant.

Bowman & Haish, for appellee.

COLEMAN J.

The appellee, Umbenhauer, sued out an attachment which was levied upon certain goods as the property of S. Kaufman, the defendant in the attachment suit. The Bayonne Knife Company interposed a claim to the property, and an issue was made up under the direction of the court, for the trial of the right of property. The court tried the case without the intervention of a jury, and found the issue for the plaintiff. When the court without a jury determines the issue, the rule is that if there are no errors in the exclusion of evidence, and the legal evidence received authorized the conclusion, although there may have been illegal evidence admitted, the conclusion reached must be sustained. The goods in question were shipped by claimant to S. Kaufman at Birmingham, Ala., where he had been engaged in the mercantile business. At the time the goods reached Birmingham, the store of Kaufman had been closed by the sheriff, by virtue of sundry attachments issued against him. The goods in question were levied upon by plaintiff while they were in the depot of the railroad in Birmingham, and which, after the freight charges were paid by plaintiff, were delivered to the officers making the levy by the carrier without objection. The goods were shipped to Kaufman in the month of October, under an order given for them in March previous. There is evidence tending to show that as soon as claimant learned that the store of Kaufman had been closed by attachments it directed the carrier to return the goods; but when this direction was given-whether before or after they had been levied upon by plaintiff's attachment-is not shown, nor has any fact been proven which tended to show when the order to return the goods was given to the carrier. The right of stop-page in transitu depends upon the insolvency of the vendee, either at the time of the sale of the property or subsequently, and before possession, either actual or constructive, by the vendee. Smith v. Barker (Ala.) 15 So. 340; Loeb v. Peters, 63 Ala. 243; Benj. Sales, infra. This principle of law seems to be almost universally recognized. In fact, we know of no authority which holds that stoppage in transitu may be asserted against a solvent debtor. The claimant objected to evidence which, if believed, established that Kaufman possessed valuable property in Georgia largely in excess of all his liabilities. The evidence tended to show that the business in Birmingham was conducted by an agent and that Kaufman himself had not been in Birmingham for some time previous to the levy of the attachment, nor since, until this trial, and that he had two stores in Georgia. There is no evidence to show that credit was extended to the vendee on the faith of the business conducted at Birmingham, except the single fact of the shipment of the goods to that place. The claimant and vendor is a nonresident of the state of Alabama, and it is fairly presumable...