Bierbower v. Polk

• Decision Date: 11 March 1885
• Citation: 17 Neb. 268,22 N.W. 698
• Parties: BIERBOWER v. POLK.
• Court: Nebraska Supreme Court

17 Neb. 268

22 N.W. 698

BIERBOWER

v.POLK.

Supreme Court of Nebraska.

Filed March 11, 1885.

Error from Lancaster county.

Lamb, Ricketts & Wilson, for plaintiff.

Harwood, Ames & Kelly, for defendant.

REESE, J.

The action was brought in the district court by defendant in error against plaintiff in error for the value of a stock of goods, which, it is alleged, was the property of defendant in error, (plaintiff below,) and which she alleges was converted by plaintiff in error.

Plaintiff in error answered, setting up four defenses, which may be summarized as follows: (1) A general denial. (2) That at the time of the alleged conversion he was the United States marshal for the district of Nebraska, and that the goods in question were seized by him by virtue of a certain order of attachment issued out of the circuit court of the United States for the district of Nebraska against one C. W. Chambers, who was the owner thereof, and that they were afterwards sold by him under an order of sale duly issued out of said court; that the title of defendant in error to said goods is by virtue of a pretended chattel mortgage made by said Chambers to defendant in error on the nineteenth day of February, 1883; that prior to the first day of September, 1882, defendant in error and said Chambers were doing business in Lincoln as partners under the firm name of C. W. Chambers & Co., and that Chambers was the managing partner of said firm; that at that time said firm or partnership was dissolved, and Chambers continued in the business, giving to defendant in error his promissory notes for a large amount, and running for a long time, with the secret and fraudulent understanding and agreement that, in case he should become embarrassed financially, he should give her security in preference to others to whom he might become indebted; that said dissolution and agreement were secretly and fraudulently made, without the knowledge or consent of the creditors of said firm, and with the understanding that Chambers would buy goods on credit thereafter,--his credit and standing in financial circles having been good by his association with defendantin error, who was a near relative of his, and of reputed wealth; that on the said nineteenth day of February, 1883, the said Chambers, having become insolvent and being then about to fail in business, without the knowledge or consent of defendant in error, executed to her the chattel mortgage in question to secure the notes remaining unpaid, amounting to the sum of $4,283.18, and caused the same to be filed in the office of the county clerk of Lancaster county; and at the same time, and as a part of the same transaction, he secretly and fraudulently executed to one C. T. Boggs a pretended general assignment of all his property for the benefit of his creditors; that said mortgage and the said assignment were in law one and the same instrument, both made in pursuance of the same purpose and design,--that of hindering and defrauding the creditors of said Chambers; that Boggs, under the advice and counsel of said Chambers and his attorneys, and for the purpose of carrying out the fraudulent design and purpose of Chambers, pretended to accept the trust imposed by said assignment, took possession of said store, closed the doors, placed a placard in the window to the effect that he held possession under the assignment, and so continued to hold possession until nearly the close of the 30 days in which he was allowed by law to file the assignment with the clerk, execute the necessary bond, and file his inventory; but that instead of so doing, and in pursuance of the general plan, he secretly yielded the possession of the store to the defendant in error, who then took possession, claiming to hold under the mortgage, and refused to file the assignment or qualify as assignee, and that nothing further was done under the pretended assignment; that the pretended assignment and the pretended chattel mortgage were but part of one and the same transaction, and were made for the sole purpose of hindering, delaying, and defrauding the creditors of Chambers; that the assignment and mortgage were both fraudulent and absolutely void, and that the pretended possession of defendant in error of said goods was only the possession of Chambers under the fraudulent design set forth in the answer. (3) That in case said mortgage should be held to be valid, the defendant in error should be required to account for certain goods of the value of $1,500, seized and appropriated by her out of said stock of goods, and for the sum of $1,500 in money of said Chambers collected by her, and that said sum of $3,000 should be credited on said notes, and go to discharge and reduce the lien of the mortgage, if any there be. (4) That there were tax liens on said goods at the time of the levy to the extent of $110, which reduced their value to that extent.

The reply of defendant in error admits the alleged copartnership, the dissolution thereof in August, 1882, the sale of the interest of defendant in error to Chambers for the amount alleged by plaintiff in error, and the execution of the notes therefor; that at the sale it was agreed that if, at any time, the interest of defendant in error should require it, Chambers should pay or secure said notes, and should, in case of the absence of defendant in error, employ counsel for her, to represent her in taking such security or payment; that from August 26, 1882, to February 19, 1883, Chambers conducted the business in his own name as sole proprietor; that Gage & Co. (mentioned in the answer) commenced and prosecuted the attachment proceedings, caused the seizure and sale of the goods as alleged, and that they, at the time of such seizure, were in possession of defendant in error under the mortgage; that the mortgage was executed on the day alleged by plaintiff in error, and that on the same day, after the execution and delivery thereof, Chambers executed a general assignment for the benefit of creditors, in which Boggs was named as assignee; that the attorneys under whose direction the mortgage was made, as the agents and attorneys of defendant in error, were retained for her by Chambers, pursuant to his previous agreement to do so; that at the time of the execution of the mortgage, defendant in error was temporarily absent from the state, and that the assignment was never filed for record; that on the day of the execution and delivery of the assignment to Boggs, he posted a notice on the store door that the store was closed under the assignment; and that before the expiration of 30 days from the date of the assignment, defendant in error took possession of the store and goods under her mortgage, and that her sole claim or title to the property is the mortgage and possession thereunder. All other allegations of the answer are denied.

The cause was tried to a jury, who returned a verdict in favor of defendant in error for the sum of $3,245. The jury also, under the direction of the court, at the request of plaintiff in error, returned a special verdict, as follows:

“(1) Was C. W. Chambers insolvent on the nineteenth day of February, 1883, the date of the mortgage and assignment? Answer. We cannot say. (2) Had Chambers determined on that day, prior to the making of the mortgage in question, to make a general assignment of his property for the benefit of his creditors? A. No. (3) Had Chambers selected his proposed assignee prior to the time of the execution of the mortgage in question? A. No. (4) Was the mortgage and assignment executed at or about the same time by Chambers? A. Nearly the same time. (5) Were the two instruments executed by Chambers for the purpose of transferring all his property for the benefit of his creditors? A. The mortgage to secure Mrs. Anna Polk; the assignment to secure the balance of creditors as far as possible. (6) Was the mortgage in question executed by Chambers, at or about the time he executed the assignment, for the purpose of giving a preference to the plaintiff, Mrs. Polk? A. The mortgage...