Hamilton-Brown Shoe Co. v. Whitaker

Decision Date11 October 1893
Citation23 S.W. 520
PartiesHAMILTON-BROWN SHOE CO. et al. v. WHITAKER et al.
CourtTexas 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.

FISHER, C. J.

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: "In 1887, John La Prelle was merchandising in Marlin, Falls county, and on 15th October of that year, upon examination of his affairs with his brother, James La Prelle, concluded that he would be unable to meet his liabilities, as he was indebted in a large amount to various parties. He executed a bill of sale on that day to plaintiffs, to wit, Hamilton-Brown Shoe Company, James La Prelle, Mrs. Mary J. Talbot, Mrs. Rosa F. La Prelle, and Reagan Dickson, to his entire stock of merchandise, and certain other property mentioned in said bill of sale, to pay certain debts that he claimed to have owed them, the value of the property transferred falling $1,900 short, however, of the full amount of the indebtedness he proposed to liquidate by the transfer. John La Prelle was indebted to other parties in various sums aggregating a large amount. James La Prelle is the brother of John La Prelle, and stockholder and employe of the Hamilton-Brown Shoe Company. Mrs. Mary J. Talbot was the mother-in-law, and Mrs. Rosa F. La Prelle is the wife, of John La Prelle, and Reagan Dickson is his brother, and was his ward at the date of bill of sale. The Hamilton-Brown Shoe Company is a corporation, located in St. Louis, Mo., and doing business in Texas, James La Prelle being their representative in Texas. The parties to whom bill of sale was made went immediately into possession of the goods, John La Prelle acting for his wife, Mrs. Rosa F. La Prelle, and his ward, Reagan Dickson. On ____ day of ____, 1887, an attachment was levied on part of the goods by the defendant Cyrus Whitaker, sheriff of Falls county, in favor of Meyberg & Rothchild Bros., to secure a claim of $342.50 against John La Prelle. This was a just claim against John La Prelle. The proof showed the claims of the Hamilton-Brown Shoe Company, James La Prelle, and Mrs. Mary J. Talbot to be valid and owed by John La Prelle at date of bill of sale. The indebtedness claimed to be due Mrs. Rosa F. La Prelle was evidenced by a note executed in her favor by her husband, John La Prelle; this note being $2,500 principal, and interest thereon amounting to something over $600, or enough to make the amount of note. The principal was shown to be funds derived from the sale of 200 acres of land lying in Robertson county. This land was claimed to have been inherited from her father, James Talbot, by will of said James Talbot. The will was not admitted in evidence. As to claim of Reagan Dickson, the proof shows that John La Prelle was appointed by the probate court of Grimes county his guardian, and that he had used his funds in his business, but had made no return to the probate court since his appointment. It was shown that the parties to whom the bill of sale was executed were required to give full receipt for their entire claims, and that the guardian attempted to pay off his ward in same way, and property transferred according to estimate in bill of sale was not sufficient to pay full amount of said claims. There was no proof that any probate court had passed upon and approved the acts of said guardian. It was proven that John La Prelle reserved in his hands $2,500 in notes and accounts, not included in the bill of sale. From the evidence, John La Prelle seems to have believed that he owed his wife the amount of money included in his wife's note, except the interest included in said note on the principal debt of $2,500. The evidence shows the goods levied on in this case to be worth about 55 cents on the dollar. From the facts the court concludes that the note representing the claim of Mrs. Rosa F. La Prelle was the community property of herself and husband, John La Prelle, and hence, in attempting to settle same by transfer, it accrued to his benefit, and was fraudulent, and conveyed no title to Mrs. La Prelle; and as to the claim purporting to be due Reagan Dickson, it was wholly unwarranted in law or...

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4 cases
  • Durlacher v. Frazer
    • United States
    • Wyoming Supreme Court
    • 17 d6 Dezembro d6 1898
    ...creditors, if he act in good faith, though the debtor may to his knowledge have had an ultimate fraudulent purpose. (Hamilton-Brown Shoe Co. v. Whitaker, 23 S.W. 520; Owens v. Clark, 15 id., 101; 53 Kan. Reynolds v. Weinman, 25 S.W. 33; Werner v. Zierfuss, 29 A. 737; Sabin v. Columbia, Etc.......
  • Cadwell v. Dabney, 9676.
    • United States
    • Texas Court of Appeals
    • 7 d3 Janeiro d3 1948
    ...cases. Hall v. Hall, 52 Tex. 294, 36 Am.Rep. 725; Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975, and Hamilton Brown Shoe Co. v. Whitaker, 4 Tex.Civ.App. 380, 23 S.W. 520. The opinion in the Hall case was by Justice Bonner and was rendered December 1879. The suit was by a widow again......
  • Hamilton-Brown Shoe Co. v. Lastinger
    • United States
    • Texas Court of Appeals
    • 6 d3 Junho d3 1894
    ...Rider v. Hunt (Tex. Civ. App.) 25 S. W. 314; Kraus v. Haas, Id. 1025; Cabell v. Shoe Co., 81 Tex. 104, 16 S. W. 811; Shoe Co. v. Whitaker (Tex. Civ. App.) 23 S. W. 520. A reasonable fee to an attorney for advice and preparing trust deed for an insolvent preferring creditors would be a valid......
  • Rogers v. Waggoner
    • United States
    • Texas Court of Appeals
    • 25 d6 Maio d6 1912
    ...cited, and with which it is insisted we are in conflict, we should, perhaps, notice particularly the case of Hamilton-Brown Shoe Co. v. Whitaker, 4 Tex. Civ. App. 380, 23 S. W. 520, by one of our own courts. The point in that case insisted upon by appellee here arose in this way: A Mrs. La ......

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