Dale v. Harrahan

• Decision Date: 28 November 1904
• Citation: 85 Miss. 49,37 So. 458
• Court: Mississippi Supreme Court
• Parties: FRANK M. DALE ET AL. v. JAMES T. HARRAHAN

37 So. 458

85 Miss. 49

FRANK M. DALE ET AL. v. JAMES T. HARRAHAN

Supreme Court of Mississippi

November 28, 1904

November 1904

FROM the chancery court of Warren county, HON. W. P. S. VENTRESS Chancellor.

In March, 1899, J. T. Harrahan, appellee, recovered a decree in the chancery court of Warren county against E. M. McAdams, J H. McAdams, and W. L. McAdams, composing the firm of E. M McAdams & Sons. On February 25, 1902, an execution was issued for the balance then due of this decree, and levied on twelve mules in the possession of W. L. McAdams. F. M. Dale, one of the appellants, filed a claimant's affidavit, claiming the property levied on as belonging to appellants F. M. Dale & Co., and gave the required bond. On the trial of the claimant's issue the evidence showed the following facts The firm of E. M. McAdams & Sons were engaged in business as dealers in mules for a number of years prior to 1896, and occupied a stable at 310 West Grove street, in Vicksburg, and had a sign in front of the stable bearing the firm name of E. M. McAdams & Sons. They became insolvent, and sold their business to W. J. Howard and F. M. Dale in January, 1896. The stable property was assessed to E. M. McAdams & Sons for the years 1896, 1897, and 1898, and for the years 1899 and 1900 it was assessed to Shelton, Dale & Co., and in 1901 and 1902 it was assessed to Frank M. Dale & Co. In 1896 or 1897 the firm of Shelton, Dale & Co. commenced doing business at this same stable, with E. M. McAdams & Sons as agents, and the sign was changed as follows: "E. M. McAdams & Sons, Agents for Shelton, Dale & Co." In 1898 the firm of F. M. Dale & Co., composed of the appellants, bought the business and continued to run it, and this sign was not changed, and was there when the execution was levied. When the firm of F. M. Dale & Co. was formed and took possession of the business, in 1898, they made a contract with W. L. McAdams by which he was employed by them to work for them in the sale of mules. The evidence showed that the mules levied on belonged to F. M. Dale & Co., in fact, and that W. L. McAdams had no interest in them, but was only employed by F. M. Dale & Co. at a fixed salary. W. L. McAdams took out a privilege license to conduct a sales stable in his own name as agent for an undisclosed principal. He caused advertisements to be published in the local papers, used shipping tags in the name of E. M. McAdams & Sons, and made sales of stock and rendered accounts in his own name. From a final decree holding that the mules levied on were liable to be sold under the execution, the claimants appeal.

Affirmed.

Dabney & McCabe, for appellants.

It is not pretended that there was any fraud or collusion between the claimants and E. M. McAdams & Sons or W. L. McAdams. Indeed, there is no serious controversy as to the fact that the mules in question really belonged to the claimants and that W. L. McAdams was merely their agent. Section 4234, Code 1892, was not designed to meet such a case. It cannot be said with any show of reason that a firm (E. M. McAdams & Sons) which was not in existence at the time the levy was made, and had not been for many years prior thereto, the members of which resided in a distant state, who had no interest in the stable itself, none in the mules used and acquired in the business, none whatever in the business itself, who had nothing to do with buying the stock or paying for the same, who had nothing to do with the payment of the taxes on the property or on the business, no interest whatever in the bank account, and no interest, directly or indirectly, in the profits of the concern, could be said to be transacting the business within the meaning of the statute. Harris v. Robson, 68 Miss. 506.

Nor can it be said that a quondam member of such a firm, who had no interest in the property, no interest in the mules used and acquired in the business, no interest in the business itself, nothing to do with the buying of the stock, nothing to do with paying for the same, nothing to do with the shipping of the same, nothing to do with the payment of the taxes on the property, or on the mules, or on the business, whose money did not go to the payment for the feed bills for the stock, who had no interest whatever in the bank account, who had nothing to do with insuring the mules--in short, who had no interest in the business whatever, nor in the proceeds and profits arising therefrom, but was a mere hired employe, working for a salary--can be said to be transacting the business within the sense and meaning of the statute. Bufkin v. Lyon, 68 Miss. 255.

But it is objected that the sign did not truly...