Kingman & Co. v. Weiser Brothers
| Decision Date | 16 June 1896 |
| Docket Number | 6661 |
| Parties | KINGMAN & COMPANY v. WEISER BROTHERS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Thurston county. Tried below before NORRIS, J.
REVERSED AND REMANDED.
James H. McIntosh, for plaintiffs in error.
References Smith v. Sands, 17 Neb. 498; Beals v Flynn, 25 Neb. 578; Kellogg v. Richardson, 19 F. 70; Smith v. Howard, 20 How. Pr. [N. Y.], 121; O'Neil v. Salmon, 25 How. Pr. [N. Y.], 246.
T. M Franse and A. C. Abbott, contra.
References: Kierstead v. Brown, 23 Neb. 595; Eldridge v. Hargreaves, 30 Neb. 638; Sherer v. Piper, 26 Ohio St. 478; Jones v. Foxall, 13 Eng. L. & Eq., 140; Mayer v. Zingre, 18 Neb. 458; Holland v. Commercial Nat. Bank, 22 Neb. 583; Johnson v. Steele, 23 Neb. 82; Grimes v. Farrington, 19 Neb. 44; Armstrong v. Cook, 54 N.W. [Mich.], 873; Caulfield v. Bittinger, 37 Neb. 542.
Plaintiffs instituted an action against defendants, or the firm of which they were members, in the district court of Thurston county, to recover the amount alleged to be due on a promissory note executed by the firm and delivered to plaintiffs, and caused a writ of attachment to issue in such action, the grounds therefor, as stated in the attachment affidavit, being as follows: "That the said defendants are about to convert their property, or a part thereof, into money for the purpose of putting it beyond the reach of their creditors; and that they have assigned, removed, and disposed of their property, or a part thereof, with the intent to defraud their creditors, and that they have property and rights of action which they conceal." The writ was issued and levied on certain property as the property of the defendant firm. In the action, subsequently to the issue and levy of the writ, a motion to discharge the attachment was filed for the partnership, the reason assigned being that the statements contained in the affidavit were untrue. On a hearing of the motion it was sustained and the attachment ordered discharged. Plaintiffs filed a bond and removed the attachment branch of the case to this court for review of the proceedings of the trial court therein. The sole question presented for determination is, Was there sufficient evidence to sustain the findings of the trial judge on which was based the order discharging the attachment, viz., that the allegations of the affidavit in attachment were not true?
It appears that on and prior to the 24th of October, 1893, James and John Weiser were partners in and conducting a retail hardware business and store in Pender, Nebraska, and also dealing in agricultural implements; that on or about the date mentioned the firm negotiated a sale or made a transfer of the business, stock of hardware, and agricultural implements to one Bender, the consideration to be received by the firm being a tract of land containing 294 acres, situate in Cuming county, this state. Of this land about thirty acres were under cultivation, and there were buildings on the land, viz., a frame house 16x28 feet and some small sheds. This land was purchased by Bender, July 25, 1893, for the sum of $ 5,076, it being entirely a time sale, the whole consideration being divided into payments to be made at stated dates subsequent to the time of sale, ending with January 1, 1897. In October, 1893, the land was accepted in the trade for the stock of hardware, etc., at a valuation of $ 12,076. The stock, which inventoried about $ 7,000, and the assumption by the firm of the $ 5,076 deferred payments to be made of the original purchase price of the land, constituting the consideration passing to Bender in the trade. Some witnesses placed the value of the land at the full amount at which it was figured in the deal between the firm and Bender. One witness placed it higher, and one, whose affidavit was presented on the part of the firm, stated the value of the land to be $ 10,000. There was a bill of sale of the stock of goods to Bender, and a quitclaim deed of the land from Bender to the Weisers; also an assignment to the Weisers of a contract of sale and purchase executed between the prior owner and Bender. We will here give what James Weiser said in his affidavit was a statement of the assets and liabilities of the firm:
Kingman & Co
$ 2,207 25
Other liabilities
19,882 00
Total liabilities
What is denominated the Weiser Block (Opera House), and valued in the foregoing statement at $ 20,000, was valued by other witnesses, quite a number of whose affidavits were of record on the part of the Weisers, at $ 15,000, two on the part of the plaintiff who stated its value to be $ 10,000, and one who said it was worth not to exceed $ 13,000. Prior to the deal between the firm and Bender the opera house, or the building in a room of which the stock of hardware was situated, was incumbered as follows: A first mortgage in the sum of $ 4,000, of date September 19, 1891, with interest at eight per cent per annum, none of which, it appears, either principal or interest, had been paid. A second mortgage, of date March 1, 1892, in the sum of $ 1,000, and a third for $ 907.35, of date July 17, 1893. On the second and third, as on the first, the interest remained unpaid. There was an unpaid balance of purchase consideration for the block in Main Street Addition of $ 850.
We will now notice some of the conditions existing as to the property of the Weisers as a firm or as individuals, or which arose from transfers made at or about the time of the trade hereinbefore alluded to. All, or practically all, of the bills receivable had been delivered to banks, creditors of the firm, or to other creditors, as collateral security for the payment of the indebtedness of the firm. On October 25, 1893, during the pendency of the trade between Bender and the firm, an assignment of all book accounts, as shown in the ledger, was made, which was evidenced by posting in or attaching to the ledger the following:
And afterwards the book was delivered to the bank. A mortgage had been executed by the firm which covered the opera house block, by its terms securing the payment of three promissory notes of one thousand dollars each, payable in one, two, and three years after date, with interest at the rate of six per cent per annum. The notes were of date October 2, 1893, and payable to Margaret Weiser, the mother of the two partners. James Weiser, one of the partners, testified that he received $ 1,000 in money from his mother in the year 1891 and gave his individual note evidencing the indebtedness thus created and that the mortgage just referred to was given by the firm The mortgage was filed and recorded October 24, 1893. The partners were unmarried and had a furnished room or some rooms in which they lived. On October 24, 1893, a bill of sale was executed, which conveyed, or purported to convey, all their furniture, etc., together with some property of the firm (as stated by James Weiser, all...
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