Leser v. Glaser

• Decision Date: 07 November 1884
• Citation: 32 Kan. 546,4 P. 1026
• Court: Kansas Supreme Court
• Parties: WM. LESER AND EMIL MOEGLING, Partners as Wm. Leser & Co., v. SAMUEL GLASER AND ABE S. STRAUS, Partners as Glaser, Straus & Co., AND ISAAC S. STRAUS AND HENRY MEYER, Partners as Straus & Meyer

4 P. 1026

32 Kan. 546

WM. LESER AND EMIL MOEGLING, Partners as Wm. Leser & Co., v. SAMUEL GLASER AND ABE S. STRAUS, Partners as Glaser, Straus & Co., AND ISAAC S. STRAUS AND HENRY MEYER, Partners as Straus & Meyer

Supreme Court of Kansas

November 7, 1884

Error from Wyandotte District Court.

TWO ACTIONS against Wm. Leser & Co., on accounts for goods sold and delivered to defendants--one action brought by Glaser, Straus & Co., and the other by Straus &amp Meyer. In each action an order of attachment was issued and levied upon a stock of goods consisting of clothing gentlemen's furnishing goods, etc., in the city of Wyandotte, and belonging to the defendants. On March 29 1883, the defendants in each of these cases moved the court to dissolve the attachments. These motions coming on for hearing, May 5, 1883, before Hon. Wm. R. Wagstaff, district judge, at chambers, were consolidated, and both were heard at the same time and upon the same evidence. Said motions were overruled, and the attachments sustained; to which rulings the defendants in each case excepted. They bring the two cases to this court, and ask for a reversal of the foregoing rulings and orders. The facts are stated in the opinion.

Affirmed.

Hale & Miller, for plaintiffs in error.

Alden & McGrew, and Lathrop & Smith, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On March 19, 1883, two actions were commenced against William Leser and Emil Moegling, partners as Wm. Leser & Co.--one by Samuel Glaser and Abe S. Straus, partners as Glaser, Straus & Co., and the other by Isaac S. Straus and Henry Meyer, partners as Straus & Meyer. Each action was brought on an account for goods sold and delivered, and in each action an order of attachment was issued. The grounds stated in the affidavit for the order of attachment in each case are as follows:

"That the said defendants have assigned, removed, or disposed of or are about to dispose of their property, or a part thereof, with the intent to defraud, hinder or delay their creditors, and are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors."

On March 29, 1883, the defendants in each of these cases moved the court to dissolve the foregoing attachments. The motion in the case of Glaser, Straus & Co. reads as follows:

"And now come the above-named defendants, William Leser and Emil Moegling, and move the Honorable W. R. Wagstaff, judge of the above-named district court, at chambers, at the court house in the city of Wyandotte, Kansas, for an order dissolving the attachment in the above cause, for the reason that the affidavit for attachment in said cause is false and untrue, in law and in fact, and for the further reason that the said Emil Moegling and William Leser, or either of them, have not assigned, removed, or disposed of, nor are they about to dispose of their property, nor any part thereof, with intent to defraud, hinder or delay their creditors, or the creditors of either of them; and they, or either of them, are not about to convert their property, or any part thereof, into money, for the purpose of placing it beyond the reach of their creditors, or the creditors of either of them. Wherefore, said defendants ask that said attachment be dissolved, and the goods and chattels herein attached released."

The motion in the case of Straus & Meyer is substantially the same as that in the case of Glaser, Straus & Co., except that the motion in the case of Straus & Meyer contains the following additional words, to wit: "That the said attachment was obtained illegally and without sufficient grounds therefor." Each of these motions was supported by an affidavit, which was in substance the same as the motions. On May 5, 1883, these motions came on for hearing. They were consolidated, and both heard at the same time and upon the same evidence. They were heard on affidavits and other written evidence, and the court overruled the same, to which ruling the defendants in each case duly excepted; and they now, in a consolidated case, bring the two cases to this court and ask for a reversal of the foregoing rulings and orders of the district court.

It appears from the evidence introduced on the hearing of the motions, that the defendants, Leser and Moegling, formerly lived at Cincinnati, Ohio; that in August, 1882, they left that place and came to Wyandotte, Kansas, where they went into the clothing business; that on January 15, 1883, they executed and deposited in the office of the register of deeds of Wyandotte county, Kansas, two certain chattel mortgages upon their stock of goods, one to Carl Moegling, the father of the defendant Emil Moegling, for $ 1,527, and the other to Henrietta Leser, the sister of the defendant William Leser, for $1,500. These chattel mortgages were the same in form, and similar to other chattel mortgages, except that inferentially and by implication they permitted the mortgagors to retain the possession of the mortgaged property and to sell the same "in the regular course of trade at retail," and did not contain any stipulation or provision with reference to what should be done with the proceeds of such sales; and there was no agreement or understanding outside of the mortgages as to what should be done with such proceeds. The stipulations in each of these mortgages with reference to these matters read as follows:

"But if default be made in the performance of the conditions aforesaid, or if said parties of the first part shall attempt to sell the same, or any part thereof, except in the regular course of trade at retail, or to remove the same or any part thereof, out of the said county of Wyandotte, without the assent of the said party of the second part, her heirs, executors, administrators or assigns to such sale or removal, to be expressed in writing, or if said second party shall at any time deem her security unsafe, then it shall be lawful for said party of the second part, her heirs, executors, administrators or assigns to take immediate possession of the whole of said property, and to sell the same and apply the proceeds of such sale in the manner provided by law."

The plaintiffs below claim that the foregoing mortgages are fraudulent and void as against the creditors of the defendants, and that all the sales of goods made after the execution of such mortgages are also fraudulent as against such creditors. The facts upon which these claims are founded are as follows: The plaintiffs claim that prior to the time when the defendants left Cincinnati and came to Wyandotte, Kansas, they had over three thousand dollars in money, which belonged to themselves; that even as early as July 25, 1882, the defendant Moegling deposited with the firm of Rindskoff, Sterne, Lauer & Co. the sum of $ 1,800, and took their note therefor with interest added, Moegling stating at the time that the money belonged to him, and was his own; that afterward the defendants purchased a large amount of goods from such firm, and in part payment therefor gave them the sum of $ 2,500 in money, and also, upon the recommendation of such firm, with which they were well acquainted and in whose employment they had previously been purchased on credit large amounts of other goods from other firms, including the plaintiffs in these present actions. On January 15, 1883, and in Wyandotte county, Kansas, the...