Gibson v. Trowbridge Furniture Co.

• Decision Date: 26 May 1891
• Citation: 93 Ala. 579,9 So. 370
• Parties: GIBSON ET AL. v. TROWBRIDGE FURNITURE CO. ET AL.
• Court: Alabama Supreme Court

9 So. 370

93 Ala. 579

GIBSON ET AL. v. TROWBRIDGE FURNITURE CO. ET AL.

Supreme Court of Alabama

May 26, 1891

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

Brickell, Harris & Eyster and Kyle &amp Skeggs, for appellants.

E W. Godbey, for appellees.

STONE C.J.

The transcript in this case contains the original bill, and that which is described as a second amendment. If there was a first amendment, it is not shown in the transcript. Possibly it was made by interlineation, and in the transcript before us the amendment was incorporated in the body of the original bill. We must deal with the pleadings as they are presented to us. The present is a bill by several persons and corporations claiming to be creditors at large of a corporation known as the "Decatur Furniture Company," which had its place of business at New Decatur, Ala. The gravamen of the bill is that the said corporation had fraudulently disposed of its entire property and effects, chiefly to Gibson, and the balance of Estes, president and manager of the corporation, and that the said corporation is now insolvent. The corporation and Gibson and Estes are made defendants. There was demurrer to the bill and amended bill, and the chancellor's decretal order overruling the demurrer is the subject of the present appeal.

One of the grounds of demurrer relied on is that, the purpose of the bill being to subject property alleged to have been fraudulently disposed of, it cannot be prosecuted and maintained in a joint suit by several separate creditors, who have not reduced their claims to judgment. This precise question was ruled against the demurrer in Manufacturing Co. v. Thompson, 90 Ala. 129, 7 South. rep. 530. There is nothing in this objection.

The second ground of demurrer is that the bill and amended bill fail to set forth that the claims on which the suit is founded were due and demandable when the bill was filed. Jones v. Massey, 79 Ala. 370, is relied on in support of this contention. The authority sustains the contention, if the facts justify it. The bill sets forth the names of the several creditors, and the several amounts claimed by each. It also states that the consideration of each of the claims was furniture shipped to the Decatur Furniture Company pursuant to its order. It then contains this averment: "All of which were by your respective orators shipped to the Decatur Furniture Company, and to it delivered at Decatur, Ala.; and the prices for the same are owing, unpaid, and due." This averment, although not very specific, we hold is sufficient on demurrer.

A third ground of demurrer is that although the bill charges in general terms that the conveyance of the corporation's effects by Estes, the manager, to Gibson, the president, was fraudulent, yet it does not sufficiently set forth the facts which constitute the fraud. It is certainly true that a mere charge of fraudulent intent is not sufficient. The pleader must aver the facts which constitute the fraud. 3 Brick. Dig p. 510, § 31. The bill charges "that the pretended sale and transfer of the stock in trade of the Decatur Furniture Company to the defendant R. F. Gibson was without warrant of law or color of right, there being no legal and valid consideration therefor; that neither the Decatur Furniture Company nor its creditors received any benefit by reason thereof; that said Gibson paid said company nothing therefor that Gibson's purpose in procuring the said transfer to himself was to reimburse himself for money he had expended in compromising the claims against the insolvent firm of Sessions and Estes, and the subscription he had made to the capital stock of the Decatur Furniture Company; and that the intent and effect of such transfer, and the unequal...