Ellwood v. May

• Decision Date: 03 July 1888
• Citation: 38 N.W. 793,24 Neb. 373
• Parties: ELLWOOD v. MAY ET AL.
• Court: Nebraska Supreme Court

24 Neb. 373

38 N.W. 793

ELLWOOD

v.MAY ET AL.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

A creditor of an insolvent debtor may obtain from him payment in full of a bona fide debt, and such payment may be made in property, provided its fair value does not exceed the amount of the debt, and such creditor will not, for that cause alone, be chargeable with intending to delay or defraud the creditors of the debtor.

Error to district court, Antelope county; CRAWFORD, Judge.Uttley & Benedict, for plaintiff in error.

E. F. Gray, for defendants in error.

MAXWELL, J.

One D. L. Cramer was indebted to the defendants in error in the sum of $1,797.51. Cramer was doing business at Ewing, in Holt county. The above claims were placed in the hands of E. F. Gray, an attorney, for collection, with instructions, if unable to obtain the money, to purchase a sufficient amount of goods to pay these debts. Gray called upon Cramer, and presented the claims, but was unable to obtain payment in money, and thereupon purchased sufficient goods of Cramer to satisfy the demands. The goods so purchased were immediately taken possession of by Mr. Gray, and, as soon as convenient thereafter, were shipped to Antelope county. There is a stipulation in the record that the claims of the defendants in error were bona fide, and the proof shows that the value of the goods received did not exceed the amount of the claims. A few days after this transaction other creditors of Cramer brought actions against him, and caused attachments to be issued therein, and the goods in question levied upon as the goods of Cramer. The defendants in error thereupon brought an action of replevin to recover the goods, and on the trial the “plaintiffs and defendant waived a jury, and consented to a trial of this case to the court, and thereupon, after hearing the evidence on behalf of the plaintiff and defendant, and the arguments of their respective attorneys, and the court being fully advised in the premises, the court does find that the sale to the plaintiffs [defendants in error] of the goods mentioned in the petition herein was not fraudulent as to other creditors of D. L. Cramer, within the provisions of chapter thirty-two of the Compiled Statutes of Nebraska of 1885, entitled ‘Fraud;’ and the court does further find and conclude that said sale was not an assignment, within the provisions of chapter six of the Compiled Statutes of Nebraska of 1885, entitled ‘Assignments,...