Landauer v. Mack

• Decision Date: 16 January 1894
• Citation: 57 N.W. 555,39 Neb. 8
• Parties: LANDAUER ET AL. v. MACK ET AL.
• Court: Nebraska Supreme Court

39 Neb. 8

57 N.W. 555

LANDAUER ET AL.

v.MACK ET AL.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. Where a creditor causes an attachment to be levied upon a stock of goods in the possession of the agent of certain mortgagees, the burden of proof is upon such creditor, on a motion to discharge the attachment, to show that the mortgages were made for the purpose of hindering, delaying, or defrauding creditors.

2. The principles laid down in the first, third, and fifth paragraphs of the syllabus in Jones v. Loree, (Neb.) 56 N. W. 390, approved, applied, and followed.

Error to district court, Douglas county; George W. Doane, Judge.

Action on promissory notes by Landauer, Kaim & Streng against G. H. Mack & Co. From a judgment dissolving the attachment issued, plaintiffs bring error. Affirmed.Chas. Offutt, for plaintiffs in error.

Bartlett, Crane & Baldrige and E. R. Duffie, for defendants in error.

RYAN, C.

The questions arising in this case are solely incident to an attachment which issued out of the district court of Douglas county against the defendants, G. H. Mack & Co., in a certain cause pending in that court, wherein Landauer, Kaim & Streng were plaintiffs. This attachment was levied upon a stock of merchandise which had previously, to wit, on February 15, 1890, been mortgaged to the several parties hereinafter named for the security of the payment of the amounts designated as owing to each, to wit: To the First National Bank of Omaha, $6,908.16; to Elizabeth Mack, wife of G. H. Mack, to secure the payment of $5,939.16; to Sebastian Trottner to secure the payment of $2,160; to Calixto Lopaz & Co., to secure the sum of $1,290.28; to the firm of G. H. Mack & Co., of Cleveland, Ohio, (the individual members of which were S. Trottner and H. Lichtenberg, of Cleveland, Ohio,) to secure payment of the sum of $2,912.56; to D. H. Steele & Co. to secure the payment of $1,200; to Yokum Bros., of Reading, Pa., to secure the payment of $1,446.60; to Alvin McLeod, of Omaha, Neb., to secure the payment of $200; to Meyer & Raapke, of Omaha, Neb., to se-sure the payment of $200. Subsequently to February 15th, other mortgages, chattel and real, were given by the firm of G. H. Mack & Co., until the number of all was in the aggregate 60. These mortgages, without question, covered all the property owned by the firm of G. H. Mack & Co., of Omaha, at the time the several mortgages were made. Anterior to the 15th day of February, it is claimed, and for the purposes of this case it may be conceded, that G. H. Mack, a member of the firm of G. H. Mack & Co., withdrew from the assets of said firm such amounts of money as were out of proportion to his proper individual expenses, for which purpose he testified that the same were withdrawn. From the testimony it is quite clear that the aggregate amount of the mortgages given on the 15th day of February, 1890, equaled or exceeded the value of the real and personal property mortgaged. It is an established fact upon the evidence that several of the mortgages given on February 15th were given to relatives of G. H. Mack. It is also true that the mortgages to Van Slyke and McLeod were given in excess of the amounts due each of these last two named parties, who were at the time employes of the firm of G. H. Mack & Co. These mortgages, given for more than the amounts actually due, seem to have been so given rather from mistake, or want of means of fixing the amount, than from any intention of giving any undue preference to the mortgagees named, respectively.

It is insisted in argument that the fact that many of the mortgages given were to secure payment of sums not due at the date of the mortgages was evidence of bad faith on the part of the mortgagor and mortgagee. We should be loth to infer as a...