Johnson v. Risk

• Decision Date: 08 December 1890
• Citation: 11 S.Ct. 111,34 L.Ed. 683,137 U.S. 300
• Parties: JOHNSON v. RISK et al
• Court: U.S. Supreme Court

137 U.S. 300

11 S.Ct. 111

34 L.Ed. 683

JOHNSON v. RISK et al.

December 8, 1890.

This was a bill filed in the chancery court of Shelby county, Tenn., on October 28, 1885, by John Johnson against Thomas L. Risk, L. Tiff Risk, John D. Milburn, H. C. Warriner, Eben L. Risk, a minor, and his guardian, Alice H. Risk, all residing in Shelby county, and Frank L. Duncan and Jennie, his wife, residing in Cincinnati, Ohio. The bill averred that the complainant and one E. F. Risk, since deceased, were copartners in the city of Memphis, under the styles of Johnson, Risk & Co., and Risk & Johnson, doing a foundry and also a mercantile business; and that on the 1st day of February, 1875, the firms were dissolved, and, for $10,000 paid to complainant, he sold and conveyed to Risk his undivided half of the real estate, and also his interest in the machinery, tools, and stock of every kind, belonging to said firms, reserving their bills receivable, book-accounts, and debts due them, which were to remain the joint property of Risk and complainant, but were to be collected by Risk and by him accounted for to complainant, in the proportion of one-half to complainant, and the other to Risk, 'in the manner set forth in the deed of bargain and sale executed at the time, and a copy of which is filed with and is a part of this bill, and marked 'Exhibit A." It was further averred that 'one condition of the said sale was that the said E. F. Risk assumed the payment of each and all the debts and liabilities of every kind whatever of each and both of the said firms of Johnson, Risk & Co. and Risk & Johnson, and bound and obligated himself to pay the same and protect and keep the said Johnson harmless from the payment of any part thereof.' The bill then stated that among the liabilities of the firms so assumed by Risk was one to his son L. Tiff Risk, who declined to sue his father for the debt, notwithstanding he knew of the contract 'by which his father had gotten all the assets of the said firms, and had agreed to pay all their debts and liabilities,' but brought suit therefor against the complainant alone in the circuit court of Shelby county, and recovered a judgment therein, April 22, 1878, for $1,260.87, and costs; that E. F. Risk never at any time paid any part of this judgment, and on the 27th of August, 1885, the complainant paid L. Tiff Risk $1,000 in satisfiction thereof, by giving him his note for $150 due at four months, and another of the same date for $850 due at six months, with indorsers; and that no part of said sum had been repaid complainant, but the whole remained due and unpaid. Complainant further stated that on the 11th of July, 1878, E. F. Risk filed his petition in bankruptcy in the district court of the United States for the district of West Tennessee, under and in compliance with the act of congress, entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved on the 3d day of March, 1867, and in such petition asked to be discharged from all his debts and liabilities then existing; that subsequently, on the 20th of December, 1878, a discharge was granted him by the court aforesaid, in manner and form as declared in said act; that E. F. Risk died intestate in Shelby county, Tenn., on the 20th of June, 1882, without ever having paid any part of the debt t L . Tiff Risk, on which the latter had recovered judgment against complainant; that on the 27th of June, 1882, letters of administration on his estate were granted by the probate court of Shelby county to the defendant Thomas L. Risk, who was qualified and became the administrator and executed a bond as such, conditioned according to law, with the defendants, John D. Milburn and L. Tiff Risk as his sureties; that the administrator, on the 21st of August, 1882, filed an inventory of the assets of the estate, showing certain cash on hand, and giving a list of personal property on which no value was set; that, on the 27th of September, 1882, the said Thomas L. Risk, as such administrator, filed in the probate court his final settlement of the estate of E. F. Risk, without giving the prescribed statutory notice to creditors and others interested in said estate; and that on the same day an order was entered confirming the settlement and discharging Thomas L. Risk as administrator, canceling his bond, and releasing his sureties from further liability. Upon this settlement it was shown by the administrator that the personalty had been disposed of, and that the whole amount with which he should be charged was $1,028.49; and he also showed the debts paid, the expenses of administration, and the sum remaining for distribution, and credited himself with the sums paid the distributees of E. F. Risk, deceased, being as follows: To Mrs. Jennie Duncan, to L. Tiff Risk, to Alice H. Risk as guardian of Eben L. Risk, grandson of E. F. Rish, deceased, and himself, $202.56 each.

Complainant averred that Thomas L. Risk made the payments to the distributees without taking any refunding bond as required by the statute, and in his own wrong and without the authority of law, and that he and his sureties on his administration bond are now liable to complainant on account of the matters set out in the bill for the full amount of said payments and interest thereon until paid. Complainant further showed that on December 1, 1883, Thomas L. Risk was appointed by the probate court administrator de bonis non of the estate of E. F. Risk, deceased, and at that time gave a bond as such administrator, with defendants L. Tiff Risk and H. C. Warriner as sureties, and thereupon qualified and had since continued to be such administrator, but had filed no inventory of the assets of said estate since his appointment, and had taken no steps in the administration, so far as the complainant knew or believed. The bill then proceeded: 'Upon the state of facts aforesaid the plaintiff submits that the discharge in bankruptcy of the said E. F. Risk did not discharge him or his assets from liability to the plaintiff on the contract of indemnity, a copy of which is marked 'Exhibit A,' and a part of this bill, but such liability remains upon his estate, and the said Thomas L. Risk, as administrator thereof, personally, as if no discharge in bankruptcy had been granted; and the plaintiff further submits that the said distributees to whom the said Thomas L. Risk distributed the sums aforesaid in the manner aforesaid, to-wit, [naming them,] are liable, and are bound by law to refund and pay the said sums so distributed to them, respectively, in order that the same may be applied towards the payment of the demand herein set up by the plaintiff against the estate of the said E. F. Risk, deceased, and the said Thomas L. Risk, as administrator.' The bill prayed process, and that on the final hearing complainant might have a decree against the defendants and each of them, or such of them as were liable, jointly or severally, for the sums they respectively owed him, and for general relief.

Exhibit A attached to the bill bore date February, 1, 1875, and recited that in consideration of $10,000 the receipt of which was thereby acknowledged, and the further consideration thereinafter mentioned, Johnson had that day bargained, sold, and conveyed to E. F. Risk his undivided half or moiety of a certain parcelof land as described, (upon which the firm's foundry building was located,) together with all the tools and machinery or every sort and kind whatever, then on said lot or in said foundry, and then continued: 'This instrument further witnesseth that the firms of Johnson, Risk & Co. and of Risk & Johnson are this day dissolved, the said Johnson selling all his interest in the machinery, tools, and stock of every kind on hand belonging to both firms, to the said E. F. Risk, and part of the consideration for said sale and the above conveyance is that the said Risk assumes payment of each and all the debts and liabilities of every kind whatsoever of each and both of said firms, and binds and obligates himself to pay the same and protect and keep said Johnson harmless from the payment of any part thereof;' and it is then provided that the bills receivable, etc., shall be collected by E. F. Risk, and divided as fast as practicable between himself and Johnson, less necessary costs and charges, one-half to...