Henney Buggy Company v. Ashenfelter

• Decision Date: 21 March 1900
• Docket Number: 9.154
• Citation: 82 N.W. 118,60 Neb. 1
• Parties: HENNEY BUGGY COMPANY v. J. W. ASHENFELTER
• Court: Nebraska Supreme Court

82 N.W. 118

60 Neb. 1

HENNEY BUGGY COMPANY v. J. W. ASHENFELTER

No. 9.154

Supreme Court of Nebraska

March 21, 1900

ERROR to the district court for Gage county. Tried below before LETTON, J. Affirmed.

AFFIRMED.

F. I Foss, B. V. Kohout and Norman Jackson, for plaintiff in error.

W. C LeHane and D. E. Collins, contra.

OPINION

NORVAL, C. J.

In 1893 one George R. Fouke was engaged in various lines of business in Liberty, Gage county, this state. In that year he failed his liabilities being far in excess of his assets. He sold practically all of his personal property to the Henney Buggy Company, one of his creditors, the consideration for such sale being the cancellation of his debt to it, amounting to over $ 1,800, and the payment to him by it of the difference between the amount of such debt and the agreed value of the property, such difference being $ 300. Fouke was then placed in possession of said property, consisting of stocks of goods of different character, as an employee of the company, and a former employee of his was appointed its general agent in the management and disposition of the same. After this sale, some of the other creditors of Fouke attached a portion of said goods; others obtained judgments against him, and levied executions upon the goods, the value of the goods so levied on being, according to the agreement of the parties hereto, $ 1,000. The goods so levied on were, while in the hands of the officer holding such writs, replevied by said Henney Buggy Company, it claiming title to them by virtue of said sale to it by Fouke. The defendant officer answered, setting up the fact that he held said goods by virtue of levies under said writs, and that the sale by Fouke to the buggy company was fraudulent and void as to the other creditors of Fouke. On this issue the case was tried in the lower court, resulting in a verdict and judgment in favor of the defendant officer, and said buggy company comes to this court by petition in error from such judgment.

There are over 150 errors assigned in the petition in error, not all of them, however, being urged in the brief of counsel. We shall notice such errors as are urged in the brief, so far as they may affect this decision, it being understood that others not noticed would not in anywise alter the conclusions arrived at by the court.

It will be observed that in the sale of this property by Fouke to the Henney Buggy Company a greater amount of goods was sold than sufficed to satisfy the debt of Fouke to it, the difference being paid by it to Fouke in cash. It is a well established principle of law that a debtor may prefer a creditor, and that such preference is not fraudulent, even though such creditor has knowledge of an intent on the part of such debtor to hinder, delay or defraud his other creditors, so long as such creditor takes only sufficient goods to satisfy the debt, or the value of which is not appreciably greater than the amount of such debt, and does not participate in such fraudulent intent. But, does a different rule obtain when, in a case like this, the creditor takes more goods than are sufficient to liquidate the debt paying the difference between their value and the debt in cash? We are of the opinion that another rule does apply; that a creditor who purchases the whole of his debtor's goods--said debtor being in failing circumstances--paying the difference between the amount of the debt and the fair value of the goods in cash, occupies...