Greene & Button Co. v. Marshall

• Decision Date: 09 October 1888
• Citation: 39 N.W. 767,72 Wis. 648
• Parties: GREENE & BUTTON CO. v. MARSHALL ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 648

39 N.W. 767

GREENE & BUTTON CO.

v.MARSHALL ET AL.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Fond du Lac county.

Colman & Sutherland, for appellant.

J. W. Hiner, ( James W. Bass, of counsel,) for respondents.

TAYLOR, J.

The appellant commenced an action against C. H. Marshall for the recovery of a debt due from him, and in such action garnished Remington and Bass; alleging that they had property in their hands belonging to Marshall, and that they were indebted to said Marshall. The garnishees denied all liability, and issue was taken upon their answer by the appellant.

The main facts in the case, as they appeared on the trial, are the following: Shortly before this action was commenced Marshall was doing business as a druggist in the city of Fond du Lac. He was embarrassed in his business, and could not pay his debts promptly. He made an absolute sale of his stock in trade, the fixtures in the store, a delivery wagon and mule, and a portion of his accounts, to the garnishees, for the sum of $5,500. Immediately after the sale, the garnishees took possession of the goods, etc., and converted them to their own use. The contract was in writing, and reads as follows:

“For value received, I do hereby sell, transfer, and assign to L. J. Remington & Co., (a firm of copartners composed of L. J. Remington and James W. Bass,) of Fond du Lac, Wisconsin, all my right, title, and interest in and to the stock of drugs, cigars, and all other merchandise being in the building at No. 486 Main st., in the city of Fond du Lac, Wis., and appertaining to said business; and also all fixtures, show-cases, furniture, books, curtains, signs, apparatus, tools, and all other personal property now in said building, or connected therewith, or appertaining thereto, or used in the business heretofore carried on by me at said 486 Main street; also the large soda fountain now in said store, and all the soda fountain apparatus, and parts of soda fountain in said building; also one soda fountain, and all the apparatus connected therewith, in the possession of D. Greenway, at Green Lake, Wis.; also the dray wagon and span of mules, and the harness used with them,--being the two largest of my mules, and the ones used in draying in connection with said store; and 5 barrels of benzine, and all the empty barrels, 40 in number, now in the oil-shed used by me on Cherry street, on R. R. track; also all accounts and claims owing me by other parties in my books of account at said store, except a list of accounts excepted therefrom, and retained by me, which list is in the handwriting of said Remington, and marked ‘Schedule A,’ and in my possession, and of which said Remington & Co. have a duplicate; also the iron safe in said store; and I guaranty that I am the owner of all of said property, and that the same is clear of all incumbrance whatever, except a claim of W. W. Clark for five hundred dollars and interest,--to have and hold the same to the said L. J. Remington & Co., and their assigns forever.

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                ¦Dated October   24, 1887.¦C. H. MARSHALL. [Seal.]¦
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Signed, sealed, and delivered in the presence of C. K. PIER.

In consideration of the purchase of the stock of C. H. Marshall, and the bill of sale this day executed by him to L. J. Remington & Co., (a firm of partners consisting of L. J. Remington and J. W. Bass,) we agree to pay fifty-five hundred dollars upon the indebtedness of C. H. Marshall, as specified in Schedule B and C, hereto annexed; the debts in said Schedule C to be paid in full, and the balance to be paid on the debts mentioned in Schedule B, as far as it will pay the same; and the said debts in Schedule B may be settled in the order and at such figures as said L. J. Remington & Co. may choose; and any balance left of said $5,500, after such payment and settlement of the debts in said schedules, shall be applied on a further debt of $200, owing C. H. Benton by said Marshall, or otherwise as said Marshall shall direct, after paying J. W. Bass for his expense and legal services in settling same.

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                ¦Dated October   24, 1887.¦L. J. REMINGTON & Co.”¦
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The claim of the appellant was placed in Schedule B, and was stated to be $524. The evidence in the case shows their claim was considerably larger, but it also appears from the evidence that Marshall insisted in good faith, at the time of the sale and when the schedule was made, that he had a valid defense to any claim of the said appellant beyond the said sum of $524. The evidence on the trial also shows that the respondents, the garnishees, paid and settled all the claims mentioned in said schedules except the claim of the appellant, and one other small claim of about $218 scheduled to Casse, Lackey & Co. All the creditors in Schedule B have been settled with, and their claims discharged, except the claim of plaintiffs and Casse, Lackey & Co The claims in Schedule B were not paid in full, but they were satisfied by paying from 75 cents and upwards to payments in full. The payment of the creditors in Schedule C in full, and those in Schedule B, except the appellant and Casse, Lackey & Co., at the rate above stated, has exhausted the said sum of $5,500, except the sum of $682.57, and perhaps the sum of $75, an overcharge, making in all $757.57, which was still in the hands of...