M. L. Barrett & Co. v. Chilton

• Decision Date: 02 May 1922
• Docket Number: No. 16723.,16723.
• Citation: 241 S.W. 434
• Court: Missouri Court of Appeals
• Parties: M. L. BARRETT & CO. v. CHILTON.

241 S.W. 434

M. L. BARRETT & CO. v. CHILTON.

No. 16723.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."`

Proceedings by M. L. Barrett & Co. against James W. Chilton, garnishee, in execution of a judgment against the Minusa Cine Products Company. Judgment for plaintiff, and garnishee appeals. Reversed and remanded and certified to Supreme Court.

E. G. Curtis, of St. Louis, for appellant.

Otis L. Clonts, of St. Louis, for respondent.

BECKER, J.

This is a proceeding by garnishment on an execution. Judgment was rendered against the garnishee for $421.33, the amount of the execution with interest and costs thereon. Unavailing in his motion for a new trial, the garnishee brings the case here.

J. W. Chilton, garnishee, in answer to the interrogatories filed, denied that he held any moneys or property in his hands belonging to the judgment creditor, the Minusa Cine Products Company.

The plaintiff filed a denial of the garnishee's answer. He stated therein that the Minusa Cine, Products Company, on May 10, 1917, executed and delivered to the garnishee herein a deed of assignment, whereby it undertook to sell, assign, and transfer to said garnishee all of its assets; that under the terms of said instrument said garnishee took possession of all of the assets of said Minusa Cine Products Company and converted said assets into cash; that said instrument authorized said garnishee to take charge of all the said assets of said Minusa Cine Products Company, convert same into cash, and after paying certain expenses, enumerated in said instrument, to pay all creditors of said Minusa Cine Products Company; and that, in the event such funds were not sufficient to pay all of said creditors in full, the said garnishee was directed to prorate such funds among said creditors, and to pay pro rata to all such said creditors as would receipt their respective bills against the assignor in full satisfaction of all their claims against it.

The denial alleged that it was further provided in said instrument that, in the event any creditor of the company did not claim his distributive share and execute a receipt in full satisfaction of all its claims against the assignor, then the said garnishee was directed to hold such distributive share of such creditor for a reasonable time and then to return same to the assignor.

The denial further stated that said garnishee took possession of all the property belonging to said assignor, said property being: of the value of several thousand dollars; that said garnishee sold and converted a part of said assets into cash, and that at the time of service of garnishment, and of filing of the answer of said garnishee, said garnishee had in his possession several thousand dollars worth of the assets of said assignor.

The denial further alleges that said deed of assignment was not made under the assignment laws of this state, and that the creditors were not bound thereby unless and until they accepted the terms of said deed; that plaintiff had a judgment against said Minusa Cine Products Company for the sum of $382.96; that plaintiff had not accepted the terms of said deed; that no part of said judgment had been paid; and that said garnishee still had in his hands the moneys derived from the sale of said assets. Plaintiff prayed judgment against said garnishee for the amount of its said judgment, with interest and costs.

The cause was tried in the lower court on an agreed statement of facts. The facts alleged in plaintiff's denial of the garnishee for answer are practically the same as are contained in the agreed statement of facts.

Additional facts appearing in said agreed statement are as follows: All the creditors of the Minusa Cine Products Company, with the exception of plaintiff and one other, filed their accounts with said trustee. The debts filed amounted to $9,725.26, and the total receipts from the sale of said property were $3,485.14, over $1,786 of which was distributed to creditors, $572.64 was expended in necessary costs of administration of said. estate, and $1,126.80 remains in the hands of said garnishee. The garnishee has always been ready and willing to accept proof of plaintiff's claim and to distribute to it its full pro rata share of the funds realized from the sale of said property, and is still willing to do so; but plaintiff has refused to file proof of its claim with the garnishee. The deed of assignment is attached to the agreed statement and is made a part thereof.

The assignment contains, amongst others, the following clauses:

"This deed, made and entered into this tenth day of May, 1917, by and between the Minusa Cine Products Company, a corporation of St. Louis, state of Missouri, party of the first part, and J. W. Chilton, * * * party of the second part, and the persons, firms and corporations ...