Becker v. Rardin

• Decision Date: 02 December 1891
• Citation: 17 S.W. 892,107 Mo. 111
• Parties: BECKER v. RARDIN.
• Court: Missouri Supreme Court

17 S.W. 892

107 Mo. 111

BECKER v. RARDIN.

Supreme Court of Missouri, Division No. 2.

December 2, 1891.

ASSIGNMENT FOR BENEFIT OF CREDITORS — WHAT CONSTITUTES — SALE.

A written contract recited that the vendor "sold and transferred" to the vendee his merchandise in his store, the vendee to take the same "at its cost value; that is to say," all new goods "at first cost;" all goods that are in any way damaged, "at their present cash value;" and, if the parties should differ as to the value, they shall call to their assistance some practical merchant "to fix the value thereof, whose decision shall be final;" that, in payment, the vendee should surrender certain notes held by him against the vendor, and pay off certain items of the latter's indebtedness; and that, in case the goods invoice to a greater amount than the indebtedness, the difference should be paid to a certain person "for the benefit of other creditors not herein before named." Held that, since there was an agreed price fixed for the transfer, the contract was a sale, and not an assignment for the benefit of creditors, within the meaning of Rev. St. 1889, § 424, providing that every voluntary assignment by a debtor, in trust for his creditors, shall be for the benefit of all the creditors of the assignor.

Appeal from circuit court, Worth county; C. H. S. GOODMAN, Judge.

Action by Gerhart Becker against Courtland L. Rardin. From a judgment for plaintiff, defendant appeals. Reversed, with directions to dismiss.

John M. Wood, for appellant. McCullough & Peery, R. L. Whaley, Lucas & Harrigan, and W. J. Gibson, for respondent.

GANTT, P. J.

This is an action begun in the circuit court of Worth county by the plaintiff, who was one of the creditors of William D. Rardin, against the defendant, in which it is charged that, by virtue of a certain conveyance made by William D. Rardin to the defendant, said defendant became the assignee of the goods, wares, and merchandise conveyed, for the benefit of all the creditors of said William D. Rardin; that, although he was by virtue of said instrument such assignee, he had failed to file his bond as such, and had failed to file inventories of the stock as required by the statute in such cases; and concluded with a prayer for an order to show cause why he should not be removed for failure to comply with the law, and for all proper relief. The defendant answered, denying that the conveyance which he had taken to the property was an assignment, and that he was assignee, and avers that he actually purchased the property outright, and agreed to pay certain debts of said William D. Rardin as the consideration therefor. The cause was tried at the November term, 1888. The following is all the evidence: The defendant offered in evidence: (1) The contract between defendant and William D. Rardin, which is in words and figures as follows, to-wit: "This contract, made and entered into this 1st day of September, 1888, by and between Wm. D. Rardin, of Denver, Worth county, Mo., party of the first part, and C. L. Rardin, of Gentry county, Mo., party of the second part, witnesseth that the said party of the first part has this day sold and transferred to the said party of the second part his stock of merchandise in Denver, Worth county, Mo., consisting of dry goods, notions, clothing, hats, caps, boots, shoes, groceries, queen's-ware, and all other articles on hand in said store, the party of the second part to take said merchandise at its cost value; that is to say, all goods that are new and not soiled, to be invoiced at first cost; all goods that are old, shelf-worn, or in any way damaged, to be invoiced at their present cash value. It is further agreed and understood that, if the said parties to this contract cannot agree as to the value of any portion of the merchandise so sold, they shall call to their assistance some practical merchant of the town of Denver, to fix the value thereof, and whose decision shall be final; the said party of the first part to receive payment for said stock of merchandise as follows, to-wit: The said party of the second part to cancel and surrender to him, the party of the first part, four certain notes, held by him against the said first party, amounting to three thousand nine hundred and ninety-four dollars and seventeen cents, and shall pay off and discharge the following items of indebtedness of him, the first party, to-wit: Three notes to F. M. Magee, amounting to five hundred and thirty-one dollars and sixty-seven cents; two notes to W. C. Chapman, amounting to four hundred and forty-seven dollars; one note to J. P. Morrison, for two hundred and thirteen dollars and thirty-three cents; one note to Mrs. Isaac Dillon, amounting to one thousand and fifty dollars; one note to P. H. Bush, amounting to two hundred and ten dollars; one note to Phelps, Dodge, and Palmer, for three hundred and seventy-nine dollars; one note to Citizens' Bank, for three hundred and thirty-one dollars; to P. H. Bush, three hundred dollars for services as clerk in store. The said party of the second part hereby agrees, in consideration of and for the stock of goods, wares, and merchandise so sold to him as aforesaid, by the said party of the first part, to accept the same upon the terms hereinbefore mentioned, and to pay for them in the manner hereintofore stipulated, to-wit, to cancel and surrender to the said party of the first part the four promissory notes held by him against the said first party, amounting to $3,994.17, and, as further payment upon said stock of merchandise, to pay for said first party: To F. M. Magee, $531.67; to W. C. Chapman, $447.00; to J. P. Morrison, $213.33; to Mrs. Isaac Dillon, $1,050.00; to P. H. Bush, $510.00; to Phelps, Dodge & Palmer, $379.00; to Citizens' Bank, $331.00. It is further agreed that the invoice of said stock of merchandise shall be made as soon as practicable, and, in case the stock of goods fails to invoice a sum sufficient to cover the amount of indebtedness, to-wit, $7,636.17, then, in such case, the said second party shall have the right to have and select good and solvent accounts due to said party of the first part from his customers to an amount equal to the difference between the said invoice price and the amount...