Harris v. Russell

• Decision Date: 27 May 1891
• Citation: 9 So. 541,93 Ala. 59
• Parties: HARRIS ET AL. v. RUSSELL ET AL.
• Court: Alabama Supreme Court

9 So. 541

93 Ala. 59

HARRIS ET AL. v. RUSSELL ET AL.

Supreme Court of Alabama

May 27, 1891

Appeal from circuit court, Morgan county; JAMES B. HEAD, Judge.

Action by George R. Russell and Thomas A. Russell against Benjamin P. Harris, as sheriff, and the sureties on his indemnifying bond, to recover damages for the alleged wrongful taking of certain goods and chattels which were described in the complaint by name, style, and quantity of the different articles so taken. The defendant demurred to the complaint on the ground that it was insufficient in law, in that the description of the property alleged to have been wrongfully taken was too vague, uncertain, and indefinite. The court overruled this demurrer. Issue was thereupon joined upon the plea of the general issue and upon the plea of justification under legal process. The main facts are substantially as follows: During all of the time involved in this suit there were five brothers who figure in the controversy, E. J Russell, John M. Russell, W. B. Russell, G. R. Russell, and Thomas A. Russell, the latter two as plaintiffs. Soon after the war, Russell Bros., composed of E. J. Russell and J. M Russell, did a mercantile business in Athens. This firm was succeeded in 1874 by E.J. Russell & Co., the latter firm being composed of said E. J. Russell and one John McAllister. On January 1, 1878, this latter firm was succeeded by E. J Russell & Bro., composed of E. J. Russell and George R Russell, the latter having purchased the interest in the firm of E. J. Russell & Co. of John McAllister. On January 1, 1880, the firm of E. J. Russell & Bro. was succeeded by E. J. Russell, who bought out the interest of George R. Russell, giving his note, bearing interest at 10 per cent., therefor, and he conducted the business alone. While E. J. Russell thus carried on the mercantile business alone, he incurred many debts, and on January 2, 1882, and for days thereafter, several of his creditors placed their claims in the hands of attorneys in Athens for collection. It was contended that E. J. Russell was then in failing circumstances. While said claims of the creditors of E. J. Russell were in the hands of attorneys for collection, and while said E. J. Russell was being pressed for the settlement of said claims, on February 7, 1882, he transferred all his stock of goods and business to the plaintiffs, George R. and Thomas A. Russell, and also transferred some of the claims held against his debtors to another one of his brothers for money paid in cash. These transfers were made on the evening of the 7th of February, 1882, and during that night E. J. Russell, with the aid of some of his brothers, wrote notices to his several debtors that their respective indebtedness had been transferred to certain ones of his brothers, naming them, and these notices were sent to his debtors. The note of said E. J. Russell to George R. Russell, which formed the consideration of the joint transfer to the latter of the former's stock of goods, was based upon the alleged sale of January 1, 1880, of George R. Russell's interest in the firm of E. J. Russell & Bro., to said E. J. Russell. The claim of Thomas A. Russell, which formed the consideration of his interest in the joint transfer to him and George R. Russell by E. J. Russell, was founded upon the latter's indebtedness to Thomas A. Russell for wages as bookkeeper and clerk from the middle of June, 1881, to February 7, 1882, at $75 per month; and also E. J. Russell's liability on a draft drawn by W. B. Russell on said E. J. Russell in favor of Thomas A. Russell as a bridal present to him on the night of his marriage, in February, 1881. It was also in evidence that, prior to the above employment, Thomas A. had clerked for E. J. for $500 a year. This transfer of E. J. Russell's mercantile business to the plaintiffs was published in the newspapers on February 8th, the morning after it occurred. On February 9, 1882, Fetchheimer & Co., Carter Bros. & Co., and Fite & James made affidavits, gave bond, and had ancillary attachments issued against E. J. Russell, on the ground that he had fraudulently disposed of his property. The writs in favor of Fite & James and Carter Bros. & Co. went into the hands of the defendant Benjamin P. Harris, as sheriff, about noon, February 9th; and, after being indemnified by bond given by each of the attaching creditors with the other defendants, C. N. Raisler and R. A. McClellan, as sureties, said Harris, as sheriff, made the levy of each of the writs of attachment upon the stock of goods in controversy, which was then in the possession of the plaintiffs. The attachment of Fetchheimer & Co. being afterwards delivered to the sheriff, he, being indemnified by bond with the defendant Raisler as the only surety thereon, made the levy thereof some days afterwards on the said goods. In the transfer of the goods the alleged consideration was $3,912 of indebtedness, of which George R. Russell had two-thirds interest, and Thomas A. Russell one-third interest. The plaintiffs contended that this was the true valuation of the goods so transferred, while the defendants contended that the goods were not worth over $2,600, and it is shown that, at the sheriff's sale, they brought only about $2,100. It was in evidence that up to the time of the levy of the attachments there was no visible change of possession of the stock of goods. Plaintiffs had opened no new books, hired no new clerks, had made no sales on their own account, rented no store-house, and had turned off no clerks. It was also in evidence that, at the time W. B. Russell gave the draft on E. J. Russell for $1,000 to Thomas A. Russell, the said draft was not accepted in writing by E. J. Russell; but that Thomas A. Russell's account was credited with the amount of the draft. Thomas A. Russell was book-keeper and clerk for E. J. Russell, and when the books were introduced in evidence there were certain scratches and erasures in his account, which he undertook to explain by saying that the erasures were made to correct certain erroneous entries. It was also in evidence that the plaintiff George R. Russell was present during a conversation between E. J. Russell and the attorney of the attaching creditors on the day before the attachments were issued, in which said E. J. Russell said that these creditors held the largest claim against him and that if these debts could be settled he would be able to handle the other smaller debts he owed; and that George R. Russell took no part in this conversation, and made no objection to these representations made by E. J. Russell.

The defendant requested, among others, the following written charges, and separately excepted to the court's refusal to give each of the charges as asked by them:

(1) "If the consideration paid for the stock of goods and merchandise by George R. and Thos. A. Russell was entire and undivisible, and usurious interest entered into it, and in each of the debts they paid for the property, they cannot be regarded as bona fide purchasers of such property, as against the pre-existing bona fide creditors of E. J. Russell; and if the jury find that each of the debts surrendered by Geo. R. Russell and T. A. Russell, to E. J. Russell, in payment of said interest, is so tainted with usury, and their claim to the property is based upon such debts, then the sheriff cannot be regarded as a trespasser in seizing the said property, under attachments against E. J. Russell, based upon bona fide debts due to pre-existing creditors; and, if the jury so find the facts, their verdict must be for the defendants."

(2) "If the jury find that the claim to the property seized by the sheriff was bought and paid for by two debts of E. J. Russell, and that each of said debts had included therein usurious interest, then the plaintiffs cannot recover against the defendant for the seizure of said property under the attachments introduced in evidence, if the debts upon which the attachments issued existed before the alleged sale and transfer of the property to the plaintiffs."

(3) "If the jury find from the evidence that the debts owing by E. J. Russell to Carter Bros. & Co. and to Fite & James were in existence before and at the 7th day of February, 1882, and that at and before the 7th day of February, 1882, the said E. J. Russell was unable to pay his debts, and Geo. R. and T. A. Russell knew of, or had good reason to believe, that such facts existed, and if the jury further find that on the 7th day of February, 1882, said Geo. R. Russell and T. A. Russell bought of said E. J. Russell all his stock of goods in his store at Athens, Ala., for an alleged consideration of $3,912, or about that amount, and said consideration was paid for in debts alleged to be due to them by E. J. Russell, and that each of said debts was composed of an actual indebtedness, with interest thereon at ten per cent. per annum added and included therein,-then the plaintiffs were not bona fide purchasers of said goods as against the said Carter Bros. & Co. and Fite & James, and if the said goods were seized by the defendant Harris as sheriff, under attachments in favor of said Carter Bros. & Co. and Fite & James, then the said sheriff did not commit a trespass in seizing said goods; and upon these facts, if the jury believe them to be true, their verdict must be for defendants."

(5) "If the jury find from the evidence that on the day, or the day before, the alleged purchase of these goods by plaintiffs, George R. Russell, one of the plaintiffs, heard E. J. Russell tell the attorney of these creditors, who afterwards sued out attachments against E. J. Russell, in a conversation in which E. J. Russell, G. R. Russell, and the attorneys were engaged, that the debts of these creditors were the largest...