Klein v. Miller

• Decision Date: 01 December 1892
• Citation: 11 So. 830,97 Ala. 506
• Parties: KLEIN ET AL. v. MILLER.
• Court: Alabama Supreme Court

11 So. 830

97 Ala. 506

KLEIN ET AL. v. MILLER.

Supreme Court of Alabama

December 1, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill by E. Miller against Leo Klein, Burghard Steiner, and Sigfried Steiner to set aside a sale of goods as fraudulent. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.

White & Howze, for appellants.

Mountjoy & Tomlinson, for appellee.

MCCLELLAN, J.

Bill by creditor to set aside sale of stock of goods by his insolvent debtor as fraudulent, and to subject the property to the payment of his and the debts of other creditors. The following are the averments of the bill, which are intended to present a case of fraud: "That, on the 28th day of November, [1890,] said defendant Leo Klein made a pretended sale of goods, wares, and merchandise [in a certain store] to said Burghard, Steiner, and Sigfried Steiner [the other defendants] as Steiner Bros. Your orator avers that said sale was made for a pretended antecedent debt of about ten thousand seven hundred dollars, alleged to be due by said Leo Klein to said Steiner Bros.; but your orator avers that said debt was in whole or in part simulated; that the value of said goods was grossly in excess of the amount of the debt; that said goods were actually worth the sum of, to wit, fifteen thousand dollars, ($15,000;) that said Klein was at the time hopelessly insolvent; and that said sale was made to hinder, delay, and defraud creditors," etc. The demurrers, from a decree overruling which this appel is prosecuted, raised the question of the sufficiency of these averments as a charge of fraud in said sale, the contention being that the facts constituting the alleged fraud are not stated. We think they are. The averment that the debt of Steiner Bros. was "simulated" has been held sufficient impeachment of the bona fides of the debt in a similar case, (Cartwright v. Bamberger, 90 Ala. 405, 410, 8 South. Rep. 264;) and the fact that the purchasers received goods of the value of about $15,000-for thus the averment in that regard is to be construed-in satisfaction of even a valid debt to the full amount of $10,700 would of itself vitiate the transaction, at the suit of creditors of their vendor. Calhoun v. Hannan, 87 Ala. 277, 6 South. Rep. 291. The decree overruling the demurrers is affirmed.