Meyer Bros. Drug Co. v. Rather

• Decision Date: 06 February 1895
• Citation: 30 S.W. 812
• Parties: MEYER BROS. DRUG CO. v. RATHER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 812

MEYER BROS. DRUG CO. v. RATHER et al.¹

Court of Civil Appeals of Texas.

February 6, 1895.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Action by the Meyer Bros. Drug Company against J. T. Rather and others, accompanied by writ of attachment and of garnishment against C. M. Sessions, as the holder of goods of defendant Rather, delivered under written assignment preferring certain creditors. From a judgment for plaintiff against defendant Rather for his debt, but against it upon all other issues, plaintiff appeals. Affirmed.

McKie & Autry, for appellant. Croft & Croft, for appellees.

LIGHTFOOT, C. J.

On September 9, 1892, appellant instituted this suit against J. T. Rather, claimingan indebtedness against him, as shown in the original petition, of about $1,452.92. At the time of the institution of the suit, appellant also sued out a writ of attachment and a writ of garnishment against one C. M. Sessions, and said writ of garnishment was on September 19, 1892, served upon the garnishee. On October 7, 1892, appellant filed its first amended original petition, claiming the indebtedness against J. T. Rather as in the original petition, but further averring: That a large stock of drugs and merchandise had been delivered by defendant Rather to C. M. Sessions. That said stock of drugs was of the value of about $6,000. That the same was delivered over to the said Sessions under a written instrument, and for the purpose, as stated in said instrument, of paying and securing the following named persons: R. Freedman & Co. in the sum of$300; Corsicana National Bank in the sum of $300; Mrs. S. A. Johnson in the sum of $4,414.40. That said stock of drugs so delivered to Sessions constituted all the available assets of the defendant J. T. Rather, and that at the time they were delivered to C. M. Sessions, which was about the 12th day of September, 1892, said J. T. Rather was wholly insolvent, and has been ever since, up to the trial of the case, wholly insolvent. That the trustee, C. M. Sessions, was a clerk of Rather's, was young and inexperienced in the business, and has no means himself. That Mrs. S. A. Johnson is the mother-in-law of the defendant J. T. Rather, and resides with him. That her claim against the property of Rather in the hands of C. M. Sessions is wholly fictitious and fraudulent, and, if ever a genuine claim, was barred by the statute of limitations, and is a stale demand against the defendant J. T. Rather. That plaintiff had on or about the 12th day of September, 1892, sued out and served said C. M. Sessions with a writ of garnishment, but, notwithstanding this process had been served upon him, he would most likely pay out all the assets of J. T. Rather held in his hands to Rather's relative, Mrs. S. A. Johnson. Plaintiff prayed for a writ of injunction, and for a receiver to be appointed, and a temporary injunction was granted; but on motion of defendants, Rather, Sessions, and Mrs. S. A. Johnson, the temporary injunction was dissolved and a receiver was refused, but the defendant C. M. Sessions was required to enter into a bond, in the sum of $2,500, to protect the plaintiff in case it should recover. Defendant Sessions complied with the order of the court, and filed with the clerk of the court a bond in the sum of $2,500, with George T. Jester and Travis Holland as sureties, conditioned to protect the Meyer Bros. Drug Company in case it should recover against the garnishee. After the dissolution of the injunction and the filing of said bond, the trustee sold the Rather stock of drugs for $2,000. Appellant filed its second amended original petition, which elaborated the claim of plaintiff as set out in the amended original petition above, attacking the claim of Mrs. S. A. Johnson as being fraudulent, alleged that the other two creditors protected by the deed of trust had been fully paid, and that the property in the hands of C. M. Sessions was really then held for the benefit of J. T. Rather; prayed for a judgment against defendant Rather, and Sessions and his sureties, George T. Jester and Travis Holland. All of the defendants answered by demurrers and general denials, and Mrs. Johnson, by a special answer, claimed that her indebtedness was just against the defendant Rather, and asked that her claim be first satisfied out of the funds in the hands of Sessions. Plaintiff filed its first supplemental petition, averring that, if Mrs. Johnson ever had a claim against Rather, it was a stale demand, and barred by limitation; further, that, even if her claim between herself and Rather was good, she was estopped to set it up against the claim of plaintiff, because she had knowingly permitted defendant Rather to make false representations to the commercial world as to the state of his finances, and upon said false representations the goods of plaintiff were purchased by Rather. Upon the issues so tendered this case went to trial before the court, a jury being waived, and in March, 1893, judgment was rendered in behalf of appellant for the debt claimed against defendant Rather, but upon all other issues in the case the judgment was in behalf of the defendants. Appellant excepted to this judgment, assigned errors, and has perfected its appeal. The testimony and the findings of the court below justify the conclusion that on September 12, 1892, the defendant J. T. Rather, being indebted to various persons, and, in fact, insolvent, executed a chattel mortgage upon his stock of goods, consisting mainly of drugs, etc., to C. M. Sessions, as trustee, to secure certain preferred creditors; that said chattel mortgage was regular upon its face, and that at the time of its execution said C. M. Sessions was placed in full possession of said stock of goods, and, after filing the instrument for registration, proceeded in due course to execute the same; that all of the debts mentioned in the deed of trust were valid and subsisting debts, and the mortgage was executed...