Karll v. Kuhn
| Decision Date | 02 January 1894 |
| Docket Number | 5654 |
| Citation | 57 N.W. 379,38 Neb. 539 |
| Parties | GEORGE KARLL, CONSTABLE, v. ROBERT E. KUHN |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before IRVINE, J.
REVERSED AND REMANDED.
McCabe Wood & Elmer, for plaintiff in error, cited: Kaine v Weigley, 22 Pa. 179; Kersenbrock v. Martin, 12 Neb. 374; Fitzgerald v. Meyer, 25 Neb. 77; Wasson v. Palmer, 13 Neb. 376; Beels v Flynn, 28 Neb. 575; Judson v. Courier Co., 15 F. 541; Reed v. Maben, 21 Neb. 695.
Davis, Gantt & Briggs, contra, cited: Thornburgh v. Hand, 7 Cal. 554; Noble v. Holmes, 5 Hill [N. Y.], 194; Van Etten v. Hurst, 6 Hill [N. Y.], 311; Mathews v. Densmore, 43 Mich. 461; Williams v. Eikenberry, 25 Neb. 721; Schars v. Barnd, 27 Neb. 94; Bartlett v. Cheesebrough, 32 Neb. 340.
On the 29th day of January, 1890, plaintiff in error, as constable, seized the property in controversy as that of W. C. Ryan, defendant in attachment, at the suits of Darrow & Logan, Schneider & Loomis, and J. T. Robinson Notion Company, under three orders of attachment; the demands of these plaintiffs, subsequently reduced to judgment, being $ 99.25, $ 415.92, and $ 235.80, respectively. The day following the levy the defendant in error seized the property under an order of replevin issued from the district court of Douglas county, averring ownership by purchase from W. C. Ryan prior to the issuance of the attachments. The plaintiff in error justified under his orders of attachment and alleged that the purchase by R. E. Kuhn from W. C. Ryan was in fraud of the latter's creditors, and upon this issue the case was tried and a verdict rendered in favor of Kuhn for the sum of $ 43.70. This sum the court required the plaintiff to remit, which was done, and judgment was entered in favor of Kuhn for five cents damages.
The testimony shows that in 1883 Kuhn began the banking business in Emerson, about eighty miles from Omaha, removing to South Omaha in 1889. From 1884 or 1885 he was acquainted with W. C. Ryan, who, until 1887 or 1888 was a farmer living five or six miles from Emerson. In the latter part of 1887, or early part of 1888, Ryan moved to Emerson, and, in partnership with one Clark, opened a county store, Kuhn being banker of the firm. In the fall of 1888 Clark retired. Ryan continued the business, his father and one Berben indorsing his paper for goods bought and unpaid for to the amount of $ 3,000. In January, 1890, Ryan was insolvent, but continued to do business and purchased the goods in question on credit. The debt of Darrow & Logan was about due; that of J. T. Robinson Notion Company was overdue, while the Schneider & Loomis claim had not yet matured, January 27, 1890. Ryan owed, on January 27, 1890, for goods bought, $ 2,400, on paper indorsed by his father and another in October, 1888, $ 3,000; mortgage indebtedness, $ 3,200.
In 1889 Kuhn started, in South Omaha, a grocery store. A few days prior to January 27, 1890, Ryan approached him with a proposition to sell his stock, and an inventory was made without closing business, and that seems to have been known only to the parties engaged. This inventory could not be produced at the trial. Ryan continued in possession, selling goods as usual, until the close of business on the 27th, when he and Kuhn commenced packing, working all night, and for twenty-four consecutive hours, when the goods were shipped to South Omaha. Kuhn was to pay the cost price, less freight and a trifling reduction for damaged goods, for a stock adapted to a country trade, consisting of clothing, boots and shoes hats and caps, dry goods, notions, hardware, groceries, etc. The amount of the stock is claimed to have been $ 4,500. The only reason assigned for the sale was the intention of Ryan to remove to the farm. The consideration paid was eight lots in Sioux City, Iowa, at $ 300 each, aggregating $ 2,400; a note executed by one Spiker to Kuhn, not due for fourteen months, $ 1,080; a similar note executed by one Rhoady, $ 680,...
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