F. Meyer Boot & Shoe Co. v. C. Shenkberg Co.

• Decision Date: 02 September 1899
• Citation: 80 N.W. 126,11 S.D. 620
• Parties: F. MEYER BOOT & SHOE CO. v. C. SHENKBERG CO. et al.
• Court: South Dakota Supreme Court

80 N.W. 126

11 S.D. 620

F. MEYER BOOT & SHOE CO. v. C. SHENKBERG CO. et al.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge.

Action by the F. Meyer Boot & Shoe Company against the C. Shenkberg Company and N. Smith. Judgment for defendants, and plaintiff appeals. Affirmed.

C. B Kennedy, for appellant. Aikens & Judge, for respondents.

CORSON P. J.

This is an action in equity brought by the plaintiff, a corporation against the defendants, in which it prays the court to set aside a certain chattel mortgage on a stock of goods executed by one W. H. Curtis to one C. Shenkberg, and declare a bill of sale of the said Curtis to the C. Shenkberg Company, a corporation, and a bill of sale made by the said C. Shenkberg Company to the defendant N. Smith, void, and that defendants be required to pay the value of the stock described in the said mortgage and bills of sale into court, to be applied upon a judgment obtained by the plaintiff against said W. H Curtis, and for such other and further relief as the court in equity and good conscience, may deem just. The complaint in the action is very lengthy, and sets out the transactions in which Curtis, who was the original owner of the goods, and who is in the complaint alleged to be insolvent, mortgaged the said stock of goods to C. Shenkberg for the benefit of the C. Shenkberg Company, the Powers Dry-Goods Company, and Jewett Bros. & Jewett, and subsequently transferred the same to the said C. Shenkberg Company by a bill of sale, and the making of a bill of sale by the C. Shenkberg Company to the defendant N. Smith, who at about the same time made a contract with Curtis to resell the property to him. The plaintiff also states in its complaint that it obtained a judgment against the said Curtis, and caused an execution to be issued, which was returned unsatisfied. The case was tried by the court, and certain questions of fact were submitted to a jury, and found in favor of the plaintiff. Subsequent to the trial, and before any findings of fact had been made by the court, the defendants moved the court for judgment as prayed for in their separate answers, notwithstanding the verdict of the jury, for the following reasons: "First, that, upon all the evidence in the case, the said plaintiff is not entitled to any equitable relief against the defendants, or either of them; second, that, upon all the evidence, the said defendants are entitled to the relief demanded in their separate answers; third, that the evidence is insufficient to sustain any judgment in favor of the plaintiff and against the defendants, in that it is not sufficient to impeach or render void the sales of the property in controversy, from W. H. Curtis to C. Shenkberg Company, and from C. Shenkberg Company to N. Smith." This motion was granted by the trial court, and it was ordered that findings of fact, conclusions of law, and judgment be made and filed, dismissing the action upon its merits, together with said defendants' costs and disbursements. Thereupon findings of fact were made, among which, in substance, was the following: That Curtis was indebted to the plaintiff in the sum of $917.51; that plaintiff brought an action against the said Curtis in the proper court, by service of summons and complaint; that judgment was duly recovered against the said defendant for said sum, and was duly entered; that afterwards plaintiff caused an execution to be issued upon said judgment, and placed in the hands of the sheriff of Lincoln county for service; that said execution was returned wholly unsatisfied; that no levy was made by the said sheriff upon any property under and by virtue of the said execution; that there was no seizure or taking possession of the property, or any part thereof, under and by virtue of any execution issued upon the said judgment rendered in favor of the plaintiff and against the said Curtis. The court further found that the said Curtis was indebted to the C. Shenkberg Company and said other firms in the aggregate sum of $3,599.54; that it was mutually agreed between the said C. Shenkberg Company and the other firms mentioned and the said Curtis that said Curtis should make and deliver to the said C. Shenkberg a chattel mortgage to secure the said $3,599.54, and that in pursuance of the said agreement he did so execute the same, which chattel mortgage was duly filed for record; that said mortgage was given for a good and valuable consideration, and without any intent or purpose on the part of the mortgagor, the mortgagee, or any of the parties interested therein, to hinder, delay, or defraud any of the other creditors of the said Curtis; that the same was made, executed, and delivered unconditionally, without any reservation to the said mortgagor, and for the sole and only purpose of securing the aforesaid claims to the C. Shenkberg Company and the other firms interested; that said mortgagor, Curtis, retained possession of the stock of goods, etc., until on or about the 27th day of February, 1895, at about which time, by an agreement in writing, said Curtis, in good faith, turned over to Smith, as agent for himself and C. Shenkberg, all of said property so mortgaged as aforesaid; that there was due upon said mortgage indebtedness the sum of $3,265.27; that said defendant continued in possession of the said property until May 23, 1895, and during that time he (Curtis) and all the parties interested acted in good faith, and without any intent to hinder, delay, or defraud any of the other creditors of the said Curtis; that on the said 23d day of May the said Curtis sold and delivered to the C. Shenkberg Company, defendant, in consideration of the sum of $3,267.27, all of the property remaining undisposed of, included in the said mortgage; that said company by virtue of the said sale took possession of all the property; that said sale of the mortgaged property was made for a good and valuable consideration, and without any intent to hinder, delay, or defraud any of the other creditors of the said Curtis; that, on the 23d day of May aforesaid, said C. Shenkberg Company, in consideration of the sum of $3,267.27, sold and delivered the said stock of goods to the said defendant Smith; that said last-mentioned sale was made in good faith, and for a good and valuable consideration, and without any intent to hinder, delay, or defraud any of the other creditors of the said Curtis; that said Smith at about the time of the sale of the said stock of goods from the said C. Shenkberg Company entered into a written agreement with said Curtis to transfer the said property to him upon payment of the said $3,267.27 on or before the 1st day of January, 1896; and that said Curtis has never complied with the said conditions of the said contract, and said property has never been reconveyed to him. The court states as its conclusions of law, among others, that the plaintiff failed in his action to establish any right of recovery or relief against the defendants, and...