Jackson v. Citizens' Bank & Trust Co.

• Decision Date: 10 June 1907
• Citation: 53 Fla. 265,44 So. 516
• Parties: JACKSON, Sheriff v. CITIZENS' BANK & TRUST CO.
• Court: Florida Supreme Court

44 So. 516

53 Fla. 265

JACKSON, Sheriff v. CITIZENS' BANK & TRUST CO.

Florida Supreme Court, Division B.

June 10, 1907

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Replevin by the Citizens' Bank & Trust Company against Robert A Jackson, sheriff. Judgment for plaintiff, and defendant brings error. Affirmed.

Cockrell and Whitfield, JJ., dissenting.

(Syllabus by the Court.)

COUNSEL

Sparkman & Carter and Macfarlane & Glen, for plaintiff in error.

E. R Gunby and William Hunter, for defendant in error. The defendant in error, who will be known as the plaintiff elsewhere in this opinion, replevied certain merchandise from T. K. Spencer, who was then sheriff of Hillsborough county. To the declaration a plea of not guilty was filed. Upon a suggestion of the death of Spencer, his successor in office, Robert A. Jackson, was substituted as defendant in said cause, and on the 13th day of January 1906, a trial was had, and a verdict and judgment was rendered for the plaintiff. The plaintiff in error seeks to reverse this judgment.

There are 34 assignments of error, questioning the sufficiency of the evidence to support the verdict and the correctness of certain charges given and refused by the court.

Without setting forth the evidence in full, we think a fair statement of so much of it as is necessary to state now is as follows: On the 13th day of May, 1898, J. M. Bush, doing a mercantile business as T. M. Bush & Co., in Tampa, Fla., owned two stocks of goods, consisting of dry goods, clothing, shoes, hats, furniture, and store fixtures. One stock of goods was kept in his place of business across the street from the Citizens' Bank & Trust Company. The other stock of goods was kept in his place of business in Ybor City, near Tampa, and Bush sold this property to the Citizens' Bank & Trust Company; its president, John Trice, acting for the company. The company paid $14,000 for the goods, and the record shows that upon the trial of this cause it was agreed that the actual value of the goods at the time of the sale thereof was $14,000. The sale was made in this way: On the morning of May 13th Bush's attorney, Simonton, telephoned John Trice to come to his office. Trice demurred on the ground of sickness, whereupon the attorney told him it was to his interest to go, and Trice went to the office, where he found Bush and the attorney. The latter told Trice that Bush wished to sell him his stock of goods. Trice was surprised, and offered further financial assistance to pull Bush through. The attorney told Trice there was nothing else for Bush to do; that Bush wanted to pay Trice, and the only way to do this was to sell him the goods. At that time Bush owed the bank $10,000 borrowed money, and Bush's attorney told Trice that it would take $4,000 additional in money to pay prior bills or claims on the goods, in addition to satisfying Bush's indebtedness to the bank. Trice asked Simonton why Bush wanted to sell the goods, and Simonton said there was no use for Trice to ask any questions; that Bush wanted to pay Trice, and if Trice wanted to buy the goods that was the only way Bush had to pay him. Trice bought the goods to save the $10,000 due by Bush to the bank, and went into possession of all the property at once. Trice did not know the value of the goods. He made no inquiry as to their value, took no inventory of them, and did not know whether he would be able to make out of them what he paid for them. He had been informed by Bush about two months before that the stock of goods he carried was worth (as Trice testified once) $20,000 or $25,000, or (as he said another time) $25,000 or $30,000, or that his goods were worth that much; that at the time he bought the goods he did not know whether there was any change in their value or not. At the time of the sale Bush was insolvent, and this fact was learned by Trice in his conversation with Simonton in his offce. Trice took the goods, satisfying the indebtedness to the bank, and paying Simonton, as attorney for other creditors of Bush, $4,000 in cash. The same afternoon Simonton introduced one Flatheur to Trice as a man likely to purchase the goods, and Trice sold them to Flatheur for $14,000, and delivered him the keys of the two stores; but before Flatheur got possession the stores were attached by Bush's creditors, and thereupon Trice immediately rescinded the sale to Flatheur and gave Flatheur his money back. The sale embraced substantially all of Bush's property, and it was admitted that within a few weeks of the sale Bush had purchased goods invoiced at about $15,000, which were not paid for. The $4,000 received by Simonton was disbursed by him in paying small amounts due by Bush to his employés for wages, $66.08 for rent, $144.62 in payment for a creditor represented by Simonton, $744.24 to Mrs. E. G. Bush, administratrix of Bush's deceased partner, represented by Simonton, $300 to Simonton for professional services, and the balance of $2,600 to Bush's two sons on account of claims for wages; one of them being at that time about 14 years of age, both living with their father as members of his family, and paying him no board. Both sons were working for Bush. One of them kept the books. Both collected their wages and used the money as they saw fit.

Other facts will be stated in the discussion of the various assignments of error.

Upon the close of the testimony the court charged the jury as follows:

'Gentlemen of the jury, this is an action of replevin brought by the Citizens' Bank & Trust Company against the sheriff for a stock of goods purchased by the bank from J. M. Bush, doing business as T. M. Bush & Co., and which goods were afterwards seized by the sheriff by virtue of certain writs of attachment sued out by creditors of T. M. Bush & Co. and of J. M. Bush as surviving partner of T. M. Bush & Co.

'The admitted facts in the case show that in the spring of 1898 J. M. Bush, doing business as T. M. Bush & Co., was indebted to the bank in the sum of $10,000 for borrowed money; that the bank purchased the stock or stocks of goods of Bush & Co. for the sum of $14,000, paying therefor the $10,000 due the bank by Bush & Co. and $4,000 in cash; and that the sum of $14,000 was a fair and adequate price for the goods.

'I charge you, as a matter of law:

'(1) That except in a case of a general assignment for the benefit of creditors, which does not enter into this case, a debtor in failing circumstances--that is, owing more than he can pay--has a right to prefer one of his creditors to the exclusion of the others; in other words, he can pay one creditor in full, and not pay the others at all, provided the transaction is bona fide and untainted with fraud, and, in case the payment is made by a transfer of his property, a fair and reasonable price is paid.

'(2) That when a transfer made by a debtor in failing circumstances to one of his creditors is made with intent to hinder, delay, or defraud his other creditors, and the purchaser is aware of that intent, the transfer is fraudulent as to his other creditors.

'(3) That when a debtor in failing circumstances transfers to one of his creditors practically all of his property, and in addition to his indebtedness receives an additional sum over and above what he owes, either in notes or cash, with the intent to appropriate the overplus to his own use and deprive his creditors of it, and the purchaser knows of such purpose, the sale is fraudulent.

'(4) That when a debtor in failing circumstances proposes to sell to one of his creditors practically all of his property for more than he owes, with intent to hinder, delay, or defraud his other creditors, and the circumstances under which he proposes the sale are suspicious, or the circumstances are such as to put an ordinarily prudent man on inquiry as to the purpose of the debtor, and if a diligent inquiry would have discovered the fraudulent purpose of the debtor, and the purchaser fails to make such an inquiry, the sale is fraudulent.

'(5) If a debtor in failing circumstances proposes to sell to one of his largest creditors practically all his property for a price in excess of what he owes him, and the creditor is informed, and has reason to believe, that it is the purpose of the debtor to use the excess in the payment of his honest debts, even though not enough to pay all his creditors, the sale is not fraudulent as to creditors who are not paid.

'(6) If you find from the evidence in this case that Bush & Co. were in failing circumstances; that they were practically insolvent, which fact was known to the bank, or which John Trice, the president of the bank, with whom the trade was made, ought to have known; that Bush & Co. proposed to sell their goods to the bank, demanding $4,000 over and above their indebtedness to the bank; that Bush & Co. intended at the time to so dispose of the $4,000 that their creditors could not reach it, or that they would hinder or delay their creditors in the collection of their claims; that this fact was known to Mr. Trice, or by diligent inquiry he could have discovered it--then the sale was fraudulent, and you should find for the defendant, provided there were such circumstances attending the transaction as to raise a suspicion of the bona fides of the transaction in the mind of a reasonably prudent man, or to put him upon inquiry.

'(7) If you find from the evidence that at the time of the transaction Bush & Co. had no intention of hindering, delaying, or defrauding their other creditors, but intended to apply the $4,000 to the payment of a part of their honest debts, even if not enough to pay all of them, the sale was not fraudulent, and you should find for the plaintiff.

'(8) If you find from

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