Fargo v. Rider

• Decision Date: 09 May 1896
• Citation: 36 S.W. 340
• Parties: FARGO et al. v. RIDER et al.
• Court: Texas Court of Appeals

36 S.W. 340

FARGO et al. v. RIDER et al.

Court of Civil Appeals of Texas.

May 9, 1896.

Appeal from district court, Upshur county; Felix J. McCord, Judge.

Action by C. H. Fargo & Co. against Thomas Rider and E. H. Smith. From a judgment dissolving a temporary injunction, and dismissing the action as to defendant Smith, plaintiffs appeal. Reversed.

F. S. Eberhart, for appellants. Buie & Simpson, for appellees.

RAINEY, J.

Appellants brought this suit against appellees; the petition alleging, in substance, that on November 28, 1894, and on December 16, 1894, plaintiffs, at the special instance and request of the defendant Thomas Rider, who was at the times stated a retail merchant, shipped and forwarded to him certain goods, wares, and merchandise, fully describing the same by exhibit to said petition the value of said goods amounting in the aggregate to the sum of $535.10; that said Rider promised to pay for said goods at the expiration of 60 days from the respective dates sold, thereafter; that no part of the purchase price for said goods has ever been paid to plaintiffs; that, at the time said goods were purchased, Rider made to plaintiffs a statement of his assets and liabilities, which showed that the assets were about $8,000, and his liabilities only about $1,200, and which he represented to plaintiffs to be a true statement of his affairs; that at said time said Rider was insolvent in fact, which was known to him (said Rider), and that said statement so made was false and fraudulent, and made for the purpose of obtaining said goods on a credit; that said plaintiffs relying upon said statement, and believing said Rider to be solvent, and not knowing of his insolvency, and his fraudulent intent to cheat, wrong, and defraud plaintiffs of the goods sued for, plaintiffs shipped said goods to said Rider; that subsequent to that time, to wit, December 27, 1894, said Rider made an assignment to E. H. Smith, his co-defendant herein, and delivered and turned over to said Smith the goods, wares, and merchandise sued for, and said Smith immediately took possession thereof; that on December 28, 1894, plaintiffs learned that said statement theretofore made by said Rider was fraudulent at the time it was made, and that said Rider was then insolvent and did not expect to pay for said goods, and had no reasonable expectation or belief of being able to pay for same when he induced plaintiffs to ship same to him, and plaintiffs, when they learned that such statement was false, then and there revoked said sale on said day, while the goods were still in the hands of the defendant Smith, who was informed that said goods belonged to plaintiffs, and of the circumstances under which said Rider, his co-defendant, obtained possession of the same, and plaintiffs demanded of said Smith that he turn over said goods to them; that said Smith refused to deliver said goods to plaintiffs, and subsequent thereto said Smith sold said goods for money, and that he was at that time holding said money, and had the same in his possession; that said Smith was insolvent, without any visible means out of which plaintiffs could make their money, or any judgment they might obtain against him; that said Smith was about to dispose of said money, the proceeds of the sale of said goods, with intent to defraud plaintiffs of said goods and the value thereof, and would do so unless restrained, and plaintiffs would be without any remedy whatever. Plaintiffs prayed for citation; that the defendant Smith be enjoined from disposing of the proceeds of said property, and that he be required to deposit the same with the clerk of the court, or that he hold said money, as to the court might seem best and proper; that upon final trial plaintiffs have judgment against both of said defendants; and for general and equitable relief, etc. A temporary...