Kingman v. Weiser
| Decision Date | 16 June 1896 |
| Citation | 67 N.W. 941,48 Neb. 834 |
| Parties | KINGMAN ET AL. v. WEISER ET AL. |
| Court | Nebraska Supreme Court |
The evidence examined, and held insufficient to sustain the finding and judgment of the trial court.
Error to district court, Thurston county; Norris, Judge.
Action by Kingman & Co. against Weiser Bros. From an order dismissing the attachment, plaintiffs bring error. Reversed.James H. McIntosh, for plaintiffs in error.
T. M. Franse and A. C. Abbott, for defendants in error.
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 order 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, Neb., 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 30 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 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:
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¦The Weiser Block (Opera House) ¦$20,000 00¦
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¦Block in Main street addition ¦1,600 00 ¦
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¦294 acres of land in Cuming county, Neb.¦12,076 00 ¦
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¦Bills receivable ¦9,930 00 ¦
+----------------------------------------+----------¦
¦Total assets ¦$43,606 00¦
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¦Liabilities. ¦
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¦Kingman & Co ¦$ 2,207 25¦
+----------------------------------------+----------¦
¦Other liabilities ¦19,882 00 ¦
+----------------------------------------+----------¦
¦Total liabilities ¦$22,089 25¦
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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 8 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 remainedunpaid. There was an unpaid balance of purchase consideration for the block in Main street...
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