McCornick v. Mangum

• Decision Date: 09 June 1899
• Parties: W. S. McCORNICK, RESPONDENT, v. F. A. MANGUM, JAMES BARTER, SCOTT SUPPLY & TOOL COMPANY, A CORPORATION, E. D. R. THOMPSON AND GEORGE N. LAWRENCE, APPELLANTS
• Court: Utah Supreme Court

57 P. 428

20 Utah 17

W. S. McCORNICK, RESPONDENT, v. F. A. MANGUM, JAMES BARTER, SCOTT SUPPLY & TOOL COMPANY, A CORPORATION, E. D. R. THOMPSON AND GEORGE N. LAWRENCE, APPELLANTS

Supreme Court of Utah

June 9, 1899

Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.

Action to recover possession of certain notes and contracts, for the appointment of a receiver to collect the same and to obtain a restraining order against defendants preventing their collection of the notes and accounts in their possession. From a judgment for plaintiff defendants appeal.

Affirmed.

Messrs Thompson & Lawrence and W. T. Gunter, Esq., for appellants.

Messrs Pierce, Critchlow and Barrette, for respondent.

BARTCH C. J. MINER, J. and BASKIN, J., concur.

OPINION

BARTCH, C. J.

It appears from the record that defendants Mangum and Barter were engaged in business under the firm name of the Western Cycle Company. On August 15, 1898, the firm was indebted to the plaintiff, who was doing business as McCornick & Co., for a certain sum upon an overdraft at the plaintiff's bank. The bank had also guaranteed the account of another company against the Western Cycle Co., for a considerable sum. On the date aforesaid, the plaintiff, becoming dissatisfied with the condition of the firm's bank account, called upon defendant Mangum, who was the managing partner of the firm, to secure the overdraft and guaranty. On the part of the plaintiff it is claimed that thereupon, on the date above mentioned, defendant Mangum, to secure the overdraft and guaranty, transferred and assigned to the plaintiff a large number of accounts, notes and contracts, which the firm had taken from customers from time to time upon sale of bicycles on periodical payments; that one Clarke was designated by the plaintiff, as his agent, to take charge of such accounts, notes and contracts, and to collect them and apply the proceeds under the trust; that Clarke took possession of the same and was proceeding under the trust, when, on August 29, 1898, defendant Mangum wrongfully obtained the notes, converting them to his own use, pledged them to the defendant Scott Supply & Tool Company, as security for his firm's indebtedness to that company; and that the Scott Supply & Tool Co., wrongfully withheld the possession of them from the plaintiff, and have entrusted the same to the defendants Thompson & Lawrence, attorneys, for the purpose of collecting the amounts due thereon.

These things, as claimed by the plaintiff, are denied by the defendants, and they insist that on August 29, 1898, the defendant Mangum, acting for his firm, duly assigned and transferred all of the accounts and bills receivable of the firm to the defendants Scott Supply & Tool Co., and Thompson & Lawrence to secure indebtedness due from the firm to those defendants.

This suit was brought to recover possession of the notes and contracts; for the appointment of a receiver to collect the same and hold the proceeds pending the litigation; and to restrain the defendant...