Hall v. Feeney

• Decision Date: 16 December 1908
• Parties: HALL v. FEENEY.
• Court: South Dakota Supreme Court

118 N.W. 1038

22 S.D. 541

HALL v. FEENEY.

Supreme Court of South Dakota

December 16, 1908

Appeal from Circuit Court, Stanley County.

Action by Robert I. Hall against Andrew Feeney. From a judgment for plaintiff on a directed verdict, defendant appealed. Reversed, and judgment directed for defendant.

Gaffy & Stephens, for appellant.

John A Holmes, for respondent.

CORSON J.

This is an appeal by the defendant from a directed verdict in favor of the plaintiff. The action was instituted by the plaintiff in claim and delivery to recover the possession of a certain stock of merchandise, consisting of intoxicating liquors saloon furniture, fixtures, etc., levied upon and taken into possession by the defendant as sheriff of Stanley county under and by virtue of a warrant of attachment issued in favor of Ferdinand Westheimer & Sons against James Hall, the father of the plaintiff.

It is disclosed by the record that in June, 1906, the said James Hall was the owner of a saloon, and had in his possession a stock of liquors which he was selling both at wholesale and retail; that he was indebted to the firm of Ferdinand Westheimer & Sons in the sum of $568.61, evidenced by promissory notes, some of which at that time were several months past due; that on the 30th of that month the said James Hall executed a bill of sale for his said stock of goods, furniture, bar fixtures, etc., to his son the plaintiff for the alleged consideration of $2,644.28, which was the invoice price of the entire property. The bill of sale recites the receipt of the consideration, but it was disclosed by the evidence that no consideration was in fact paid at the time, either in cash or cancellation of any indebtedness due from James to his son, Robert, but the plaintiff claims that he agreed with his father to pay the amount named in the bill of sale to such of his father's creditors as he (the plaintiff) might select, from the proceeds of the sale, so far as the money was received from the sale of the stock within the invoice price thereof. At the conclusion of all the evidence the defendant moved for the direction of a verdict, in substance, on the ground that the transaction was not a sale, but was an assignment, agency, or trust, and was fraudulent as to attaching creditors. The court denied the motion of the defendant, and thereupon the plaintiff moved for the direction of a verdict, on the ground that the undisputed evidence showed that the plaintiff was the owner of the property, and that he was entitled to a verdict therefor, which motion was granted. It is contended by the appellant that, on the testimony of the respondent and his father, appellant was entitled to a direction of a verdict for the reasons stated, and that under the evidence the plaintiff was not entitled to a direction of the verdict in his favor. It is undisputed that at the time of the alleged sale James Hall, the father, was indebted to Ferdinand Westheimer & Sons, the attaching creditors; that he was unable to pay his notes at the time the bill of sale was executed to his son, the respondent, and that no money or other consideration passed between the parties at the time of the sale.

On the trial the plaintiff, as a witness in his own behalf testified as follows in answer to the interrogatories as to what he paid for the stock of goods, "We had an understanding that I was to pay off the indebtedness to the amount of the bill of sale, and I was to take the goods to pay $2,644.28 of his (James Hall's) indebtedness to the different business houses that he had been doing business with that he was indebted to. Ferdinand Westheimer & Sons was one of these houses. I have never paid their bill. That was the only consideration that passed between my father and myself for this stock of liquors. I paid several other bills that were due from my father to other creditors. I have not paid all of them. I paid to the amount of the invoice as I took the money in and was able to. I don't just remember what the last date that I made payment was. But it was when we had a settlement. I paid him in cash the balance that was due to Mr. Hall, my father. I paid him a balance in cash that was due on the fixtures and furniture, and like that. That was after the attachment was levied on the goods. *** There was no agreement between my father and me as to what bills I would pay. I was not given a list of the bills. Only as these bills came in I was to pay what I could of them. The reason for my taking this business was the same as I would buy out any business I would think. *** I have no idea how much money my father owed at the time this stock was turned over, but I should judge that it was more than the amount of the goods invoiced. I was to pay up to that amount. *** I don't know whether it is paid yet or not. I suppose these bills of Westheimer & Sons is not paid." James Hall, the father, called as a witness on the part of the plaintiff, testified as follows: "I don't know that the contract provided any form in which it should be paid. The understanding was at the time that I was owing for these goods a considerable more than they would cover, and that the proceeds of all liquors should be paid to the creditors direct as fast as the money could be collected, and as could be got out of the sale of the goods, and if it could not be gotten fast enough, if he [respondent] had any other money that was handy, he said he would pay it in there to pay up as fast as possible. That was the arrangement. The stock of liquors I think amounted to $1,400." On cross-examination he testified to the questions propounded to him as follows: "Q. Now, Mr. Hall, you say the amount of liquors that were contained in this bill of sale were to be paid to creditors. I ask you what was to be done with the balance of the consideration? A. It was to be paid to creditors. It has all been paid to creditors. Q. Who paid the balance of it to them? A. I did. Q. When? A. At different times. My indebtedness at the time I sold out was something close to $4,000. Q. Now, Mr. Hall, you said that $1,700 of this was paid to creditors by you, did you? A. Yes, there was $1,700 of this that was paid to creditors by my son, and there is $175 that is not on there. There is $275 that he paid that is not in those checks. *** The amount of liquors described in that bill of sale were to be paid to creditors direct by Bob to the liquor men. There was no part of that to go to any other creditors. I was not particular to tell him who they were, or what to pay. He was well acquainted with my trade, and he paid as he would, I presume, if it was his own business. He ought to use his own judgment. He was my agent. Q. He was your agent, was he? A. Yes. The entire consideration of $2,644.28 was to be used to pay debts. *** The balance of it he paid to me, part of it. I don't know as there was any agreement as to that at the time of the sale. *** It wasn't specified as to who he should pay it to. We had no particular specification as to that. He paid a portion of it to me, but he paid about $1,900 to those we are indebted to or that I was." The plaintiff further testified that out of the receipts from the sale of the stock of liquors he paid his father between $500 and $600. It will thus be seen that James Hall transferred this stock of goods to the respondent, and that no consideration was paid by the respondent therefor, either in money or by the cancellation of indebtedness, that no note or other memorandum in...