Karll v. Kuhn
| Decision Date | 02 January 1894 |
| Parties | KARLL, CONSTABLE, v. KUHN. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In an action which involved the good faith of the purchaser of an entire stock of goods of the value of $4,500, which were paid for by the transfer of eight lots in an addition to Sioux City, of the alleged value of $2,400, to the seller's wife, and the remainder in notes of third parties, having some time to run, held, that the proof and instructions were too much restricted to submit the matter in full to the consideration of the jury.
Error to district court, Douglas county; Irvine, Judge.
Action in replevin by Robert E. Kuhn against George Karll, constable. There was judgment for plaintiff, and defendant brings error. Reversed.
McCabe, Wood & Elmer, for plaintiff in error.
Davis, Gantt & Briggs, for defendant in error.
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 the 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 80 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 country store, Kuhn being banker of the firm. In the fall of 1888, Clark retired, Ryan continuing the business, his father and one Berben indorsing his paper for goods bought and unpaid 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 the 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 by the parties engaged. This inventory could not be produced at the trial. Ryan continued in possession selling goods as usual until close of business on the 27th, when he and Kuhn commenced packing,...
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