Halff v. Wangemann

• Decision Date: 22 December 1899
• Citation: 54 S.W. 937
• Parties: HALFF et al. v. WANGEMANN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 937

HALFF et al. v. WANGEMANN et al.¹

Court of Civil Appeals of Texas.

December 22, 1899.

Appeal from district court, Dewitt county; James C. Wilson, Judge.

Action by M. Halff & Bro. against A. F. Wangemann and another to recover the possession of certain personal property, or its value. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Price & Green and Lewy & Sehorn, for appellants. Kleberg, Grimes & Baker and H. B. Leonard, for appellees.

GILL, J.

Appellants (plaintiffs below) brought this suit to recover from the appellees (defendants below) certain merchandise, or, in the alternative, its value. The petition charged (1) that appellee Wangemann, being insolvent, and knowing his condition, concealed this fact from appellants, and purchased the merchandise with no intention of paying for it; (2) that he made certain representations and did certain acts for the purpose of inducing the belief that he was solvent, when in fact he was insolvent, and which representations and acts, it was charged, did induce the belief that he was solvent, in consequence of which the sale was made. The petition likewise contained a count seeking, in the alternative, to recover the value of goods, wares, and merchandise sold. Appellees pleaded a general denial, and appellee Kessler pleaded specially that he was a bona fide purchaser for value of the merchandise from his co-defendant, Wangemann. From a verdict and judgment in favor of appellees, this appeal is prosecuted. The facts established are that Wangemann was a merchant, and purchased the goods from appellants through their agent, as alleged; that they have not been paid for; and that the price agreed to be paid therefor was $2,148.50. It was also shown that, prior to the institution of this suit, Wangemann sold the goods in question, together with a large quantity of other merchandise, to appellee Kessler, in payment of a debt of $15,000 due Kessler by him, and for the further consideration of the assumption in writing by Kessler of all debts, amounting to over $15,000, due by Wangemann to other creditors. For many of these debts Kessler was already bound as surety for Wangemann. The $3,000 debt to the bank at Yoakum was among the number upon which he was so bound, but his assumption of same in the purchase from Wangemann was accepted by the bank prior to the filing of this suit. The sequestration issued upon the institution of the suit was levied upon about $1,800 worth of the goods claimed. They were found in the possession of Kessler, and were replevied by him.

Appellants' first, second, and fourth assignments of error assail the action of the trial court in giving and refusing charges affecting the rights of appellants against Kessler. These assignments will not be noticed, for the...