Gus. Lewy & Co. v. Fischl, Case No. 2080

• Decision Date: 22 January 1886
• Docket Number: Case No. 2080
• Citation: 65 Tex. 311
• Court: Texas Supreme Court
• Parties: GUS. LEWY & CO. v. JOSEPH FISCHL.

65 Tex. 311

GUS. LEWY & CO.

v.JOSEPH FISCHL.

Case No. 2080

Supreme Court of Texas.

Jan. 22, 1886.

APPEAL from Washington. Tried below before the Hon. J. B. McFarland.

On November 18, 1884, Marek & Marek were indebted to Gus. Lewy & Co. in the sum of $1,400.29. On that date Marek & Marek sold their entire stock of goods (valued by them at $4,200) to Joseph Fischl, the consideration being an indebtedness to Fischl, of $3,000, and certain debts that Fischl assumed to pay. On November 20, 1884, Gus. Lewy & Co. sued out an attachment against Marek & Marek in the district court of Washington county, on the ground that they had transferred their property with the intent to defraud their creditors, and had it levied on the stock of goods sold to Fischl. On the same day Fischl claimed the stock of goods as his property, filing claimant's oath and bond as required by law. On April 7, 1885, Gus. Lewy & Co. recovered judgment against Marek & Marek for the sum of $1,400.29, with a foreclosure of the attachment lien, subject to the trial of the right of property with Fischl. On September 19, 1885, trial of the right of property was had and resulted in a judgment in favor of Fischl. From that judgment plaintiffs prosecute this appeal.

The issues upon which the case was tried were as follows: The claimant's affidavit was in pursuance of the statute. His answer, filed March 5, 1885, alleged that he claimed the goods under a bill of sale from Marek & Marek, dated November 18, 1884; that the consideration of the sale was recited in the instrument, to-wit., $4,200, $3,000 of which were paid in Mareks' notes to him, and the balance in an assumption of debts of the Mareks, due to other parties. The bill of sale was made an exhibit to the answer, and filed with it. The plaintiffs,in their pleadings, styled their amended tender of issues, after setting out the issuance of their writ of attachment against Marek & Marek, on November 20, and the levy, thereunder, on the goods conveyed by the Mareks to the claimant, alleged that at the date of the bill of sale, on November 18, the Mareks were indebted to plaintiffs and others in large amounts; that the Mareks were insolvent; that the goods had been bought of plaintiffs and others on credit and had not been paid for, as was well known to Fischl, and that the sale to him was made with the intent to hinder, delay, and defraud the creditors of the Mareks, and especially plaintiffs.

The bill of sale under which Fischl claimed the goods is, in substance, as follows: “This memorandum of an agreement made and entered into November 18, 1884, by and between J. Marek and J. Marek, composing the firm of Marek & Marek, of the one part, and Joseph Fischl, of the other part, witnesseth: That whereas Marek & Marek are justly indebted to Joseph Fischl by note, January 1, 1884, for $3,000, with interest at ten per cent. from date, due at six months, say $3,262.50, and to the following other parties, Walney & Hess $130, Wood & Low $95.00, E. Reichardt $155, Thomas Dwyer $70.00, H. Fisher $15.75, L. J. Lockett $15.40, W. C. C. Association $11.25, Haubelt Bros. $50.00, Sayles & Bassett $100, Chas. Wenar & Co. $69.32, P. W. Connell, for rent, $100, which they are anxious to secure and pay; and, whereas, Joseph Fischl has agreed, in consideration of the transfer and delivery to him of the stock of goods, groceries, provisions, and liquors, etc., hereinafter described, by Marek & Marek, to discharge his debt against them, and assume the payment of the several debts to other parties above enumerated, which agreement and obligation is attested by his signature hereto: Now, therefore, know all men by these presents, that, for and in consideration of the premises, the undersigned Marek & Marek, both in their firm name and as individuals, have bargained and sold, and do, by these presents, transfer and deliver, unto Joseph Fischl, all and singular the stock of groceries and provisions, including liquors, and also store fixtures, safe and desk, owned by them and found in the store known as Connell building, on the north side of the court house square, in Brenham, in the county of Washington, of which an inventory is attached to the copy of this instrument delivered to Joseph Fischl, the stock being valued at the sum of $4,200, and they also transfer to him, Joseph Fischl, the unexpired term of their lease of the storehouse from P. W. Connell. And Joseph Fischl, in consideration of the premises, doth hereby agree and bind himself to pay to the several creditors of Marek & Marek the amounts enumerated above, and the rents to become due to Connell for the unexpired term of the storehouse, and doth release and discharge the note and interest against Marek & Marek. Signed November 18, 1884, by Marek & Marek, J. Marek and J. Marek and Joseph Fischl.”

The claimant Fischl, testified, that the stock of goods was all the property that Marek & Marek had, that he knew of, and that he knew they owed the plaintiffs and others at the time he purchased the stock of goods; that he bought the goods to save his debt; that, in March or April, 1883, he became a silent partner in the firm of Marek & Marek, and at that time paid into the firm $2,000, and, later on, the sum of $300; that he paid the Mareks in money; that he had for several months been accumulating the money, and had carried it about his person; that he kept a small account at the bank, but carried the bulk of his money on his person, because he considered it safer; that in 1882, when he located in Brenham, he had about $1,500; that he and Marek took stock on Sunday, when he went into the partnership as a silent partner; that no one was present but the Mareks and himself when the stock was taken; that on January 1, 1884, he drew out of the firm of Marek & Marek, and they gave him their note for $3,000, payable in six months, for his interest in the business; that on the morning of that day he went to their store and told them that he wanted his money and would shut them up if it was not paid, and they then proposed to sell out to him; that the Mareks and himself were friendly at the time of the sale to him; that he had a written contract with Marek & Marek when he went into partnership with them, but it was subsequently lost or destroyed; that the sale was made pretty quickly, and an inventory of the goods was taken in half a day.

Joe Marek, one of the firm of Marek & Marek, and a witness for the plaintiffs, testified: that the stock of goods sold to Joe Fischl on November 18, 1884, was all the property they had; that they owed other persons besides those named in the bill of sale; that they owed Gus. Lewy & Co. $1,400.29; that he knew, when he sold out, that the creditors not named in the bill of sale would not be able to make anything; that the firm of Marek & Marek was insolvent, at the time of the sale; that Fischl came to his store and demanded his money, but they could not raise it, and Fischl told them he would give them one hour to get the money or be closed up; that they thought it better to sell than to have an attachment run on their property; that they preferred home creditors, because they were neighbors; that Fischl became a silent partner with Marek & Marek in March, 1883, but no one knew it, not even the book-keeper; that he put $2,300 in money into the business; that in January, 1884, Fischl drew out and got a note from Marek & Marek for $3,000, for his interest in the firm; that witness' object in making the sale was to pay Fischl; that there was a verbal agreement between Fischl and Marek & Marek, that if there was not enough realized from the stock of goods to pay him and the creditors named in the bill of sale, he was to pay himself, and Marek & Marek was to have the right to say which of the other creditors named in the bill of sale should be paid in full, and which left out; that they had no money on hand the day they sold to Fischl; that Lewy & Co. were writing to them about their claim; that he did not know what became of the books of the firm of Marek & Marek; that they were left in the safe in the store when they sold out to Fischl; that he did not take them out; that the safe was sold to Fischl, and the books ought to be in the safe; that they kept no books showing bills payable and receivable, but kept a memorandum of debts they owed, showing when they fell due; that they did not put Fischl's note in it because they did not want the book-keeper to know anything about it; that June Harris was their book-keeper during the year 1883; that they did not enter in the books the $2,000, or the $300, paid into the business by Fischl when he became a silent partner; that the $2,300 did not appear in the cash account, nor in their bank account; that he did not have the contract of partnership; that the books did not show $3,000 drawn out of the business when Fischl drew out; that their book-keeper, Mr. Harris, did not know up to the time of the sale to Fischl that they owed Fischl anything; that the understanding with Fischl, at the time of the sale, was, that whatever was left after paying his (Fischl's) note, and home creditors named in the bill of sale, was to go to other creditors than those named in the bill of sale, and that he, Marek, was to have the right to name the creditors to whom this surplus was to go.

June Harris, a witness for plaintiffs, testified: that he was then clerking for Joseph Fischl; that he was book-keeper for Marek & Marek from January, 1883, to December, 1883, and from____1884, up to the time they sold out to Fischl, and stayed with Fischl after the sale; that Marek & Marek's books were not left in the store after they sold to Fischl; that they were in the safe before the sale, but after the sale they were missing, and he did not know what had become of them; that the books showed what was owed by the firm and when it became due; that he never saw the Fischl note, did not know that the Mareks were...