Lydia Pinkham Medicine Co. v. Gibbs

• Decision Date: 20 July 1899
• Citation: 33 S.E. 945,108 Ga. 138
• Parties: LYDIA PINKHAM MEDICINE CO. et al. v. GIBBS et al.
• Court: Georgia Supreme Court

33 S.E. 945

108 Ga. 138

LYDIA PINKHAM MEDICINE CO. et al. v. GIBBS et al.

Supreme Court of Georgia

July 20, 1899

Syllabus by the Court.

1. It was not erroneous to treat as a part of the evidence in a case which had been tried admissions made in the plaintiffs' petition, and to require the same to be incorporated in the brief of evidence, though they had not been formally tendered in evidence by the opposite side. This is true notwithstanding the fact that the plaintiffs, by amendment, struck these allegations from their petition; the amendment not having been made until after the evidence had been closed, and the argument of the case upon its merits was being had.

2. Where a witness has been examined touching transactions had with a deceased person, it is not error for the court to allow opposite counsel to cross-examine the witness in regard to the same subject-matter; there being no motion to withdraw any of the testimony given by the witness on the direct examination.

3. An amendment to a petition which alleges simply that certain mortgages were made to the relatives of an insolvent mortgagor for the purpose of hindering and delaying his creditors, without alleging any facts, except those of insolvency and relationship, to show that the mortgagees had notice or reasonable grounds to suspect that the mortgages were made for such purpose, presents no issue upon which a court or jury could pass, and it was not error to refuse to allow it.

4. Where the controlling issue in a case is one of the delivery of certain mortgages and transfers of notes and accounts by a debtor to certain of his creditors, and it is agreed by counsel for both sides that under the evidence this is a question of law for the court to decide, and that he should accordingly direct a verdict, there being evidence to sustain the conclusion that there was such a delivery of the papers in question, and no evidence to the contrary, it was not error for the court to direct a verdict accordingly.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by the Lydia Pinkham Medicine Company and others against I F. Gibbs and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Mayson & Hill and Simmons & Corrigan, for plaintiffs in error.

Culberson & Willingham and Payne & Tye, for defendants in error.

SIMMONS C.J.

The Gibbs Drug Company was, according to the record, in failing circumstances. Gibbs, the proprietor, undertook to prefer certain of his creditors by executing mortgages and transferring his notes and assigning his accounts to them. The assignment of the accounts was in writing, and pasted in the front of the ledger, and stated that all of the accounts in that book, from the first to the last page, inclusive were assigned to these creditors. At the time the mortgages were executed, the notes transferred, and the accounts assigned, Culberson & Blalock were present as attorneys, representing themselves for a claim they had against Gibbs, and also representing others of the preferred creditors. When the papers were all executed, one of the attorneys told Gibbs to place them in his safe, and to collect the money on the notes and accounts, and keep it separate for the benefit of the preferred creditors. This Gibbs agreed to do. He did collect some money on the accounts before the proceedings hereinafter mentioned took place, and kept such money separate from his other property. Certain unsecured creditors filed their equitable petition against Gibbs and the secured creditors, wherein they alleged that Gibbs, the sole owner and proprietor of the Gibbs Drug Company, was indebted to them in a certain amount; that their debts were due, and that demand for payment had been made and refused; that Gibbs was insolvent; that his property consisted almost entirely of the wholesale drug business, and of the notes and accounts which were due him by his customers; that he had executed and delivered to certain persons mortgages of different amounts; that these mortgages covered the whole stock of goods; that one of the mortgages was made to secure the father-in-law of Gibbs as an individual, and another to secure him as president of a bank; that another was to secure the firm of Culberson & Blalock, and that the latter was the brother-in-law of Gibbs; that Gibbs had also assigned to these parties open accounts and notes "to a large extent." They further alleged that "to allow said mortgages to proceed in a speedy foreclosure would result in great injury to all the other creditors of the said Gibbs, and in equity and good conscience the assets covered by the said mortgages should be taken charge of, and the validity of said mortgages investigated, by a court of equity." They alleged further "that the mortgages given, together with the open accounts and notes, [would] more than satisfy the mortgages"; that the surplus funds over and above the amount of the mortgages, if the mortgages were valid, should be held up by a court of equity in the interest of the unsecured creditors. They further alleged that Gibbs had assigned all of his assets to the parties aforesaid, either by mortgages or by the transfer of open accounts and notes. They attacked the assignment of the notes and open accounts on the ground that it did not comply with the law in regard to the manner of making assignments to preferred creditors, in that certain prescribed formalities were not observed. They prayed for a receiver to take charge of the assets. It seems from the record that the receiver was appointed by consent of all the parties, and that he took charge of the assets, collected the notes and accounts as far as possible, and sold the goods. After paying expenses, he reported to the court that he had in his hands for distribution a certain amount. The case was then tried on the bill and answer and the evidence submitted by the parties. At the conclusion of the evidence, counsel for the plaintiffs requested the court to direct a verdict in favor of the plaintiffs, on the ground, principally, that there was no proof of the delivery of the mortgages and assignments. Counsel for defendants likewise requested the direction of a verdict, insisting that there was conclusive and uncontradicted proof of delivery, and that the verdict should be directed in favor of the defendants. The court inquired of the counsel if there was any issue of fact which they wished submitted to the jury, and whether the jury should not pass upon the question of delivery. In reply, each side insisted that the court should direct a verdict in its favor. The court then directed a verdict for the defendants. The plaintiffs made a motion for a new trial, which was overruled by the court. The plaintiffs excepted.

1. It appears that, in the argument before the lower court on the question of the proof of delivery of the mortgages and assignments, the defendants relied upon the admissions made in the original petition as to the execution and delivery of these instruments. The plaintiffs then amended their petition by striking out these admissions. Defendants, after the amendment was made, insisted that the admissions should still be considered as evidence. When the plaintiffs presented to the judge their brief of evidence and motion for a new trial he ordered them to put in the brief of evidence the admissions made in the original petition. In their bill of exceptions the plaintiffs except to this order of the judge; contending that after the admissions had been stricken they could no longer be used as evidence,...