Levin v. Florsheim & Co.
| Decision Date | 24 November 1903 |
| Docket Number | 20,077 |
| Court | Indiana Supreme Court |
| Parties | Levin et al. v. Florsheim & Co. et al |
From Vigo Circuit Court; J. E. Piety, Judge.
Action by Florsheim & Company against Barnard Levin and others. From an interlocutory order appointing a receiver, defendants appeal.
Affirmed.
S. B Davis, S. M. Reynolds, G. M. Davis and Frank Lindley, for appellants.
D. W Henry, G. M. Crane, A. L. Miller, D. V. Miller, R. R Harrold, A. M. Higgins and A. G. Cavins, for appellees.
This is an appeal by the appellants from an interlocutory order of the lower court appointing a receiver pendente lite. The principal action was instituted on January 5, 1903, by the plaintiff Florsheim & Co., a corporation duly organized under the laws of the state of Illinois. Appellants Barnard, Henry, and Max Levin, partners, doing business under the firm name of B. & H. Levin Brothers, together with Peter J. Kaufman, Rachel Goldenberg and Aaron Goldenberg, her husband, were made defendants in the action.
The complaint is in three paragraphs. The third was filed during the hearing of the application for a receiver. The first paragraph seeks to recover against the defendants, Kaufman and Goldenbergs, upon a common count for goods and merchandise sold and delivered to the amount of $ 2,750. The second and third paragraphs of the complaint are similar, and the following, among others, are, in substance, the facts therein averred: Prior to December 31, 1902, Rachel Goldenberg was the owner of a large stock of goods and merchandise consisting of boots and shoes, etc., situate in a store in the city of Terre Haute, Indiana, and was therein engaged in selling said stock at retail. In August, 1902, the plaintiff, Florsheim & Co., sold to Peter J. Kaufman goods and merchandise to the amount of $ 2,683.05, which sum is alleged to be due and unpaid, and the payment thereof has been unreasonably delayed. Kaufman, when he purchased the goods in question, represented to the plaintiff that he was buying the same for himself, and on his own account, but in truth and in fact in said transaction he was the agent of his codefendant Rachel Goldenberg. She received the goods purchased by Kaufman, and placed them in her said store in Terre Haute, and they became a part of the stock therein. On December 31, 1902, said Rachel Goldenberg sold in bulk to the appellants herein her said entire stock, including the goods sold to her by plaintiff. Neither she nor appellants at any time previous to said sale, made any inventory of the stock so sold and purchased in bulk, showing the quality and cost price of any of the articles thereof. Appellants, as such purchasers, did not at or prior to the said sale make any inquiry of the owner of the stock in regard to the names and places of business of any of the creditors to whom said Rachel the owner and seller of the stock was indebted for portions thereof, nor as to any amount whatever which was owing by her as an indebtedness for a part of the stock so sold and purchased. Appellants at the time they bought the stock did not, in any manner, notify the plaintiff or any of the creditors of said Rachel Goldenberg to whom the latter was indebted for a part of the stock of goods sold in regard to the proposed sale and purchase. It is further disclosed that at the time appellants purchased the stock in dispute they knew that the seller was indebted to the plaintiff, and also to a large number of other persons for the greater portion of the stock of goods embraced in the said sale. The defendants, Goldenbergs, at the time they sold the goods to appellants, were each insolvent, and so continued to be at the time the action was commenced. It is further charged that Kaufman was insolvent, and was secretly disposing of his property for the purpose of putting the same beyond the reach of his creditors; that a large number of persons other than the plaintiff, to whom said Rachel Goldenberg was indebted for goods constituting a portion of the stock in controversy, and whose rights were similar to those which the plaintiff was asserting and claiming, were threatening to institute suits to establish their claims and liens against said stock of goods. Appellants are nonresidents of the State of Indiana, being residents of the state of Illinois, and it is charged they are in possession of the goods in question, and are selling them at prices lower than the cost of manufacturing the same, and are disposing of said stock as rapidly as possible, in order and for the purpose of placing the goods beyond the reach of plaintiff and other creditors, and are threatening to transfer and remove the goods beyond the jurisdiction of the court before the plaintiff can have its claim and rights determined in the action. It is alleged that the stock is of the value of $ 15,000 and that appellants obtained the same for the price of $ 5,000. It is finally charged that the interest and rights of plaintiff and of all other persons, creditors and parties concerned in said stock, will be best subserved by the appointment of a receiver to take charge thereof until the final hearing, and hold and preserve said property for the use and benefit of such persons as may be found by the court to have a proper interest and right therein and claim thereto, etc. The prayer of the second and third paragraphs of the complaint is for a personal judgment against defendants, Peter J. Kaufman and Rachel Goldenberg, for $ 2,750 with interest, and that the sale of the goods to the defendants, Levin and Levin, be declared and adjudged null and void as against plaintiff's claim, and that the same be declared to be a lien on the said stock, and that a receiver be appointed to take charge thereof to hold and preserve the goods until the final determination of the suit, and for all other and proper relief. The second and third paragraphs are each verified. Appellants appeared to the action, and filed an answer to so much of the complaint as sought to secure the appointment of a receiver. A hearing was had on the application.
Plaintiff in support of its application for a receiver, introduced in evidence each of the paragraphs of its complaint, and also numerous affidavits. Appellants, in opposition thereto, introduced in evidence various affidavits. All of the documents so introduced have been brought before us by a bill of exceptions. The court, after hearing and considering the evidence, sustained the motion, and entered an order appointing Josiah F. Walker, and fixed his bond at $ 25,000. He filed his bond to the approval of the court, and otherwise duly qualified, and was thereupon directed by the court to take charge of the goods in controversy, and to hold and preserve the same until the final...
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