Grimes v. Farrington

• Decision Date: 19 January 1886
• Citation: 26 N.W. 618,19 Neb. 44
• Parties: WILLIAM B. GRIMES & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR. A. FRANK & SONS, PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR. A. B. SYMNS & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR. TOOTLE, HANNA & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 618

19 Neb. 44

WILLIAM B. GRIMES & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR.

A. FRANK & SONS, PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR.

A. B. SYMNS & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR.

TOOTLE, HANNA & CO., PLAINTIFFS IN ERROR, v. FARRINGTON BROS., DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 19, 1886

ERROR to the district court for Richardson county. Tried below before BROADY, J.

AFFIRMED.

Isham Reavis, A. Schoenheit, and E. W. Thomas, for plaintiffs in error, contended: 1. That the mortgage given should be construed as an assignment in its legal effect. Brown v Webb, 20 Ohio 389. Bates v. Coe, 10 Conn. 293. Perry v. Holden, 22 Pick. 269. Wallach v Wylie, 28 Kan. 138. Winstead v. Hulme, 32 Kan 572. Jeffrey v. Greenbaum, 20 N.W. 775. 2. That defendants could not be heard for the purpose of having the attachment dissolved. Chandler v. Noah, 5 Mich. 409. Price v. Reed, 20 Mich. 72. Mitchell v. Skinner, 17 Kan. 563. Long v. Murphy, 27 Kan. 375.

Frank Martin, for defendants in error, cited: Lininger v. Raymond, 12 Neb. 25. Nelson v. Garey, 15 Neb. 531. Meyer v. Zinger, 25 N.W. 727.

OPINION

REESE, J.

These cases being argued and submitted together and presenting the same questions will be disposed of in the same way. The questions presented by the brief of plaintiffs in error will be noticed in the order in which they there occur therein.

Certain attachments were issued from the district court of Richardson county in actions brought by plaintiffs in error, which were, upon motion of defendants in error, discharged by the order of the judge of the first judicial district. This ruling of the district judge is assigned as error, and is brought to this court for review. The affidavits upon which the attachments were issued allege and charge, in substance, that defendants in error had assigned and disposed of their property with the intent to defraud their creditors, and that they were about to convert the remainder of their property into money with the intent to defraud their creditors. Defendants in error moved to discharge these orders upon the ground that the facts stated in the affidavits were insufficient in law to authorize the issuance of the orders, and that the facts stated in the affidavit were untrue. The ruling of the court was evidently based upon the latter ground. The facts, as shown by the proofs submitted to the lower court, were, that defendants in error were merchants in Falls City, carrying a stock of goods of the value of from $ 14,000 to $ 18,000, and that they were indebted to various persons and firms to the amount of about $ 11,000. That certain of the creditors who resided in the city of Chicago, and representing about $ 9,000 of the indebtedness, were pressing defendants in error for payment or security, when they executed and delivered to them a chattel mortgage on their stock of goods, and under which the mortgagees took possession. The attachments followed.

The fraudulent intent which it is claimed existed at the time of the execution of the mortgage is not proved by any direct testimony, but it is claimed that the circumstances surrounding the transaction clearly indicate such intent. These circumstances consist in part in the facts that the goods were not removed from the store; that one of defendants in error remained in the store, apparently in charge, or at least partially so; that defendants in error refused to secure the debts due plaintiffs in error either by turning over to them a part of the goods or by the execution of mortgages subject to that held by the Chicago creditors; and by the fact that goods were purchased of plaintiffs in error a short time before the execution of the mortgage, and that the property mortgaged exceeds in value the amount of the debts secured.

Upon the other hand this intent is denied, and the positive denial under oath of defendants in error, as well as of the agent of the creditors who procured the mortgage, the fact that the debts secured were bona fide debts, that the property was put into the hands of the mortgagees, who took possession and control of them, placing the agent in charge as cashier, and hiring one of defendants in error as clerk at the agreed wages of $ 15 per week, are relied upon to repel any presumption of fraudulent intent which might be relied upon by plaintiffs in error. These questions were submitted to the district judge upon the hearing, and in view of the fact that the burden of proof rested upon plaintiffs in error, the intent having been denied, we cannot say the decision was wrong.

It is claimed that when defendants in error executed the chattel mortgage to the creditors named therein, it was done in contemplation of their insolvency, and with the full intention by them to make a final disposition of all their property, quit business, and dissolve the partnership, and that therefore the mortgage was equivalent to an assignment by which certain creditors were preferred, and was therefore void in law. Much is said in support of this theory. We grant that were the legal effect of the mortgage as claimed, then the position assumed by the plaintiffs in...