Goodbar Shoe Co. v. Montgomery
| Decision Date | 02 December 1895 |
| Court | Mississippi Supreme Court |
| Parties | GOODBAR SHOE CO. v. W. A. MONTGOMERY, ASSIGNEE |
October 1895
FROM the circuit court of the second district of Hinds county HON J. B. CHRISMAN, Judge.
The assignment in question was that of an insolvent merchant; was one with preferences, and included his entire stock of merchandise, but not all of his evidences of debt. The evidence showed that the debt of his brother, W. G. Redfield a preferred creditor, was stated in the schedule of liabilities at several hundred dollars in excess of the true amount. It appeared, also, from the evidence that this excess was the result of an erroneous credit given him on the books of the assignor, from which it was carried into the schedule. The assignor testified that this error was unintentional, a mere mistake. The schedule of liabilities contained both the preferred and unpreferred debts. The opinion contains the provision of the assignment relied on as authorizing a correction of the schedule. The amount of the debt in question is erroneously stated in the body of the assignment as well as in the schedule. The question determined by the opinion is decisive of all points arising on the instructions.
Judgment for defendant. Plaintiff appeals.
Affirmed.
Calhoon & Green, for appellant.
The debt of W. G. Redfield, which was made a preferred debt, was in part fictitious, and the assignment is therefore invalid. Marks, Rothenberg & Co. v. Bradley, 69 Miss. 1; Jones v. McQuien, 71 Miss. 98.
The provision empowering the assignee to make corrections in the schedule of liabilities is not such as to relieve the difficulty. Hiller & Co. v. Ellis et al., 72 Miss. 701.
Ben. H. Wells, for appellee.
The assignment only authorizes the assignee to pay what was really due to W. G. Redfield. Its language, as an authorization to correct the schedule of liabilities according to the facts, is clearer and more emphatic than that employed for the same purpose, and held to have accomplished it, in H. Wetter Manufacturing Co. v. Dinkins, 70 Miss. 835. It was, too, a partial, and not a general, assignment, as in the case cited.
Argued orally by Marcellus Green, for the appellants, and by Ben. H. Wells, for the appellees.
The distinction between the clauses in the assignment in Hiller v. Ellis , 72 Miss. 701, 18 So. 95, and the clause in this assignment is clear. The...
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