Dessar v. Field

• Decision Date: 17 September 1884
• Docket Number: 11,222
• Citation: 99 Ind. 548
• Parties: Dessar et al. v. Field
• Court: Indiana Supreme Court

99 Ind. 548

Dessar et al. v. Field

No. 11,222

Supreme Court of Indiana

September 17, 1884

Petition for a Rehearing Overruled April 7, 1885.

From the Owen Circuit Court.

The judgment is affirmed, with costs.

N Morris, L. Newberger, D. E. Beem and W. Hickam, for appellants.

S. O Pickens, W. H. Pickens and I. H. Fowler, for appellee.

OPINION

Zollars J.

Appellee, Field, was engaged in merchandising, and, not having sufficient credit, was allowed to buy goods on the credit and in the name of Thomas A. McNaught. This arrangement continued until the liability of McNaught amounted to near $ 6,000, when Field turned over to him and put him in possession of his stock of goods, store fixtures, notes and book accounts. This was done at a time when Field was insolvent. Appellants were creditors of Field when the transfer was made. In this action, they seek to attack and overthrow the transfer to McNaught, as fraudulent and void as to them.

It is not insisted that there was fraud in fact, but it is claimed that the written instrument, by which the transfer was made was and is fraudulent and void in law. The portion of the written instrument necessary to be noticed is as follows: "This agreement is to the following effect, to wit: Whereas, T. M. Field, in his business, has contracted indebtedness in the name of T. A. McNaught, and for which said McNaught is liable to the creditors, said indebtedness amounting to something near six thousand dollars or more; and whereas, judgments have been taken on a large part of said indebtedness, and creditors are pressing their claims for collection; and whereas, said indebtedness, as between said Field and said McNaught, is the indebtedness of said Field, contracted as aforesaid in the name of said McNaught: Now, therefore, to adjust said indebtedness as between said Field and said McNaught, said Field has this day sold and transferred to said McNaught, all his right, title, interest, and claim in and to his dry goods store, consisting of dry goods, clothing, boots and shoes, notions, and the tailoring business, and his entire stock of goods of every description, * * * and also all the notes and book accounts of said Field, which he hereby agrees to assign and transfer to said McNaught. And in consideration of said goods, notes and accounts, so sold, delivered, assigned and transferred as aforesaid, said McNaught assumes to pay said indebtedness so contracted as aforesaid by said Field for the use and benefit of said Field, and in the name of said McNaught; and as between said Field and said McNaught, said Field is to be exonerated and discharged from all liability to said McNaught on account of said indebtedness contracted as aforesaid. * * * It is further agreed between the parties hereto that if said goods * * * shall not amount to a sum sufficient to pay said indebtedness, * * * the said Field is to pay any deficiency which said goods * * * may fail to pay, after they shall be turned into money. * * * And it is further agreed, that if a sum...