Hamilton-Brown Shoe Co. v. Whitaker
Decision Date | 11 October 1893 |
Citation | 23 S.W. 520 |
Parties | HAMILTON-BROWN SHOE CO. et al. v. WHITAKER et al. |
Court | Texas Court of Appeals |
Appeal from district court, McLennan county; W. M. Flournoy, Special Judge.
Action by the Hamilton-Brown Shoe Company and others against Cyrus Whitaker and others to recover damages for the alleged wrongful taking of certain goods under a writ of attachment. Judgment was entered in favor of defendants, and plaintiffs appeal. Modified.
B. H. Rice and Herring & Kelly, for appellants. J. A. Martin, D. H. Hardy, Goodrich & Clarkson, and L. A. Samuels, for appellees.
The appellants, the Hamilton-Brown Shoe Company, James L. La Prelle, Mrs. Mary J. Talbot, Rosa F. La Prelle, joined by her husband, John La Prelle, and Reagan Dickson, a minor, by his guardian, John La Prelle, sued Cyrus Whitaker, as sheriff of Falls county, and the sureties on his official bond, and the sureties upon an indemnity bond, and Meyberg & Rothchild Bros., attaching creditors. The plaintiffs' action was for damages,—the alleged value of certain goods and merchandise that were taken from their possession by the defendants under a writ of attachment in the suit of Meyberg & Rothchild Bros. against John La Prelle. The appellants claim to own the property so levied upon by the appellees by virtue of a bill of sale executed by John La Prelle on the 15th day of October, 1887, before the levy of the writ of attachment, wherein was conveyed to them this property in payment and satisfaction of debts owing by John La Prelle to each of said plaintiffs in severalty; said bill of sale reciting the debt due by him to each of said parties, and that the vendees are "to have and to hold the property above described unto the several creditors aforesaid [the appellants] in the proportion that their respective demands bear to the aggregate amount of all of said several debts above specified." The amended petition, upon which the cause was tried, alleged that since the institution of the suit, Mary Talbot, one of the original plaintiffs, has died, and that Rosa La Prelle is her only surviving child, and is entitled to her interest in said property as her only heir. The petition generally alleges that the appellants and Mary J. Talbot were joint owners of the property at the time of the levy of the writ of attachment. And the petition further specifically alleges "that said goods, wares, and merchandise, the value of which is now here sued for, was held and owned by plaintiffs and said Talbot in the proportion that their said several demands, respectively, bore to the aggregate amount of all of said debts, and that they are entitled to recover the value of said goods in like proportion," (here alleging the proportion that each plaintiff is entitled to.) During the progress of the suit, Reagan Dickson became of age, and appeared in his own behalf, and by pleadings adopted all acts done by his guardian in his behalf in the making of said bill of sale and in bringing suit to enforce his rights thereunder. The appellees, by answer, justified the taking of the property under an attachment against John La Prelle; that the conveyance of said property by John La Prelle to plaintiffs was made to defraud his creditors, he being insolvent, and they participating in the fraud; that the claims in settlement of which it was made were fictitious and fraudulent; that, if otherwise, the satisfaction of the debts named in the bill of sale was colorable and pretended, and used simply as a mythical consideration for said sale, and that the real intention of the parties was that the debts should not be paid off, but continue to exist, and that under cover of the bill of sale John La Prelle should retain possession of the goods, and dispose of them for his own benefit; that the bill of sale and condition of payment of the debts expressed therein was not assented to by Reagan Dickson, or by any one authorized to act for him; that long before the debt to Meyberg & Rothchild Bros. was incurred, John La Prelle was indebted to James La Prelle and the Hamilton-Brown Shoe Company, and was insolvent, and his insolvency known to them, and they all entered into a conspiracy to represent John La Prelle as solvent, and having ample means and worthy of credit in general, so that he could buy goods on credit, and obtain goods sufficient to pay plaintiffs, and when he obtained such goods he should turn the same over to them in pretended payment; and in pursuance of such conspiracy they made representations as above stated to Bradstreet's Commercial Agency, etc., whereby John La Prelle obtained credit and got the goods in question, and then transferred them to plaintiffs. They further pleaded that Reagan Dickson never assented to any agreement by virtue of which he could become owner of the goods in controversy, and that he owns no interest in said goods. The cause was tried below before the court without a jury, and judgment was rendered in favor of the appellees.
The court below found the following as its conclusions of fact and law: ...
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