Leonard v. Bowne

• Decision Date: 11 July 1902
• Citation: 83 N.J.E. 488,52 A. 631
• Parties: LEONARD v. BOWNE et al.
• Court: New Jersey Court of Chancery

52 A. 631

83 N.J.E. 488

LEONARD

v. BOWNE et al.

Court of Chancery of New Jersey.

July 11, 1902.

(Syllabus by the Court.)

Suit by Charles T. Leonard against David Craig Bowne and others. Decree for complainant.

William J. Leonard, for complainant.

Frank P. McDermott, for defendants.

PITNEY, V. C. The complainant, Charles T. Leonard, is a judgment creditor of the defendant George B. Clark; such judgment being based upon process by attachment against the said Clark as an absconding debtor. The defendant David Craig Bowne is also a judgment creditor of the defendant George B. Clark. His judgment was by confession, and was entered, and execution levied thereon, a few days prior to the Issuance of the attachment which resulted in the complainant's judgment. The execution under Bowne's judgment was placed in the hands of the defendant Woolley as sheriff, and by virtue thereof he levied on a stock of goods, etc., in a country retail grocery store, and a few days later sold the same. The complainant, upon the levying of his attachment, which was prior to the sheriff's sale, filed the bill herein for relief against Bowne's judgment. The proceeds of the sale are in the hands of the sheriff, and form the subject-matter of the present contest. The complainant is not satisfied with a recovery of the proceeds of that sale, because the amount is not sufficient to pay his judgment, but contends that the defendant Bowne was in law and equity the partner of the defendant George B. Clark, and liable as such, and relief is asked against him in that aspect. The testimony has been taken, and the case has been considered without objection, quite irrespective of the pleadings.

The facts are as follows: The defendant George S. Clark is the father of the defendant George B. Clark, and for a second wife he married the sister of the defendant Bowne. The defendant Bowne is a well-to-do farmer living near Freehold, in Monmouth county, and between that town and Matawan. At and before the year 1890 the defendant George S. Clark, the father, was engaged in the retail grocery business in Matawan, and was assisted financially therein by Bowne. From the start that business was a losing venture, and so continued. On February 3, 1891, Clark the father was embarrassed and pressed by his creditors, and made a bill of sale to Bowne of all his store goods and plant; the consideration therein expressed was the sum of $1,606.28. At the same time, by separate writing, he assigned to Bowne all the money due him on book accounts, etc., at an expressed consideration of $216.44. No money was paid by Bowne to the elder Clark on these transactions, but it was supposed that the aggregate of the consideration money mentioned in the bill of sale and in the assignment represented the amount that Clark was indebted to Bowne. I stop here to say that at the trial of this cause evidence was given on that subject, and I ascertained that the amount due was actually about $1,300. The business was continued without interruption by the elder Clark, in the name of Mr. Bowne, until the fall of that year. In the meantime some arrangement was made between the elder Clark and his creditors, which, however, has no bearing upon the present case. In the fall of 1891 George B. Clark, the son, attained his majority, and then, by a verbal arrangement, not witnessed by any writing, the defendant Bowne transferred to the young man the store and its contents, and all the books of account; he assuming all the debts of the store proper and all the debts which the business then owed to the defendant Bowne. The business was continued as before, but in the name of the younger Clark, and it was managed afterwards, as before, by the elder Clark, and the family of the elder Clark and young Clark lived out of it. In the month of June, 1892, the store was moved from Matawan to Atlantic Highlands, into a store building owned by the complainant, Leonard. On the 18th of July of that year the complainant indorsed a note of the young man, at his request and for his benefit, for $600, drawn at three months, which matured on the 18th of October of that year,—1892,— and which I stop here to say was renewed from time to time and finally paid by the complainant. On the 14th of October, 1892, four days before the maturity of that first note, the defendant George B. Clark, the son, signed a bond and warrant of attorney to confess judgment to the defendant Bowne for the sum of $1,600, which shortly after was delivered by the maker to Bowne, and kept by him for over a year without Judgment being entered thereon. In the meantime the store was carried on in the name of the son, and managed by the father and son at a loss, and the indebtedness from the son to the complainant increased, so that on the 18th of November, 1893, it amounted to over $1,000. Some days prior to the 18th of November, 1893, the younger Clark, while suffering under a temporary aberration of mind, absconded, and his whereabouts were unknown to his father or to any member of the family for a considerable length of time. This fact coming to the knowledge of the complainant, he, on the 18th of November, made an affidavit as a foundation for a writ of attachment against young Clark as an absconding debtor, which writ was duly issued out of the Monmouth circuit court on the 20th, and placed in the hands of the sheriff, who, by a deputy, took possession of the store, and made the usual proclamation, and the deputy continued in the possession of the store for a day or two. The father at once visited Mr. Bowne, and also Mr. Dayton, who was the counsel of both parties, and communicated to each the situation of affairs. It is said that Bowne refused to do anything to assist the Clarks, in the then emergency. Mr. Clark then applied to the complainant, and begged of him to withdraw the writ, assuring him that the son would soon come back, and that the business would proceed; gave a rosy color to the situation; and stated to the complainant that the son was only indebted to others than the complainant in about the sum of $500. Relying upon those statements, the complainant gave to the elder Clark a stipulation, signed by his attorney, dated the 23d of November, that the cause be discontinued and attachment vacated. The elder Clark at once took it to Mr. Dayton, who immediately entered the order for vacation and discontinuance; then went to Mr. Bowne, and the two together went to Freehold; and on the 27th of November judgment was entered up in the Monmouth circuit court upon the bond and warrant of attorney, and execution delivered to the sheriff. The latter promptly made a levy, but permitted the...