O'Neil v. Birmingham Brewing Co.

• Decision Date: 15 June 1893
• Citation: 13 So. 576,101 Ala. 383
• Court: Alabama Supreme Court
• Parties: O'NEIL ET AL. v. BIRMINGHAM BREWING CO. ET AL.

13 So. 576

101 Ala. 383

O'NEIL ET AL. v. BIRMINGHAM BREWING CO. ET AL.

Supreme Court of Alabama

June 15, 1893

Appeal from city court of Birmingham; William W. Wilkinson, Judge.

Bill by the Birmingham Brewing Company and Solomon & Levi against Bridget O'Neil and others to set aside as fraudulent a bill of sale, and for other relief. Plaintiffs had judgment on demurrer to the bill, and defendants appeal. Affirmed.

The bill alleges that the respondent Bridget O'Neil, a married woman, and Patrick A'Hern, her son-in-law, after leasing from the Elyton Land Company a certain lot, erected thereon a two-story frame building, which they occupied as a saloon and boarding house. That said saloon business and said boarding house were run and managed together by the said Patrick A'Hern and Bridget O'Neil as partners under the firm name of Patrick A'Hern. That said Bridget O'Neil managed the boarding house and Patrick A'Hern the saloon business; and that on April 17, 1891, the respondents J. Fox's Sons induced the Birmingham Brewing Company to extend a certain line of credit to the partnership of Patrick A'Hern, representing that said partnership was entirely worthy of credit; and that the Birmingham Brewing Company, upon the faith of said representations, sold the said respondents, Bridget O'Neil and Patrick A'Hern a certain bill of goods for which they are still indebted to the complainants. That on June 17, 1891, the respondents Bridget O'Neil and Patrick A'Hern conveyed to J. Fox's Sons, in alleged payment of a debt of $3,827 (which was partly fictitious), the property owned by the firm of Patrick A'Hern which was reasonably worth $6,000. The bill further alleges that after said conveyance to said Fox's Sons the said respondents Bridget O'Neil and Patrick A'Hern were left in possession of the property conveyed, carrying on the business and making sales as if the business was their own until on or about the 13th of July 1891, when respondent Patrick A'Hern absconded from the state, at which time said J. Fox's Sons, but not until then, took possession of the property conveyed, and were at the time of the filing of the bill in possession of said property. The bill further alleges that the bill of sale from the partnership of Patrick A'Hern to J. Fox's Sons was not what it purported to be on its face, but was only intended as a security. The bill alleges that the indebtedness of Patrick A'Hern and Bridget O'Neil partners, to Solomon & Levi was contracted prior to said alleged conveyance to J. Fox's Sons; but that the indebtedness to the Birmingham Brewing Company was contracted subsequent to said alleged sale. The bill did not seek any personal decree against Bridget O'Neil.

The respondents demurred to the bill, and assigned, among others the following grounds of demurrer: (1) That said bill of complaint shows on its face that the said Bridget O'Neil is a married woman, the wife of Thomas O'Neil, and was such married woman at the time of the making of the alleged debt in said bill; and does not show any facts which make the debt binding or obligatory upon the said Bridget O'Neil. (2) Because the said bill does not show that the husband of the said Bridget O'Neil consented for her to contract said debt or create said obligation, and expressed such consent in writing. (3) Because the said bill seeks to subject the property formerly owned by said Bridget O'Neil to the payment of complainants' debts, and does not show any facts which show that the alleged indebtedness of the said Bridget O'Neil, was binding on the said Bridget O'Neil, or that her husband had given his consent for the said Bridget O'Neil to create said debt or obligation, and expressed his consent in writing; and does not show any other facts which would make the said debt obligatory or binding upon the said Bridget O'Neil. (4) The said Bridget O'Neil comes and demurs specially to that part of said bill of complaint which seeks to hold her liable for the alleged indebtedness, it appearing from said bill that the said Bridget O'Neil is a married woman, and was at the time that the said debt is alleged to have been contracted; and does not show any facts which show that said debt was a valid debt or was binding upon the said Bridget O'Neil; and does not show that the husband of said Bridget O'Neil gave his consent for her to contract the said debt or obligation, and that the same was expressed in writing, signed by her said husband; and does not show any other facts which show that the same was a valid and binding debt against the said Bridget O'Neil. (5) The said Bridget O'Neil is shown to have been a married woman at the time she is charged with entering into the partnership of Patrick A'Hern, and it is further shown that part of the business to be engaged in by said firm of Patrick A'Hern was to retail spirituous and vinous liquors in the city of Birmingham, Ala., when the said O'Neil had no power or capacity to engage in or carry on said business. (6) Said defendants come and demur specially to that part of complainants' bill as amended which seeks to hold the...