Nesbitt v. Herbert

• Decision Date: 20 February 1914
• Docket Number: 111-1913
• Citation: 56 Pa.Super. 36
• Parties: Nesbitt v. Herbert, Appellant
• Court: Pennsylvania Superior Court

56 Pa.Super. 36

Nesbitt v. Herbert, Appellant

No. 111-1913

Superior Court of Pennsylvania

February 20, 1914

Argued October 23, 1913

Appeal by defendants, from judgment of C.P. No. 3, Phila. Co.-1905 No. 3,327, on verdict for plaintiffs in case of C. S. Nesbitt and D. M. Stackhouse, trading as American Parquetry Floor Company, v. Willis A. Herbert and Penn Building Company Garnishee.

Attachment execution on judgment obtained March 5, 1906, against Willis A. Herbert, with Louis H. Cohen and the Penn Building Company as garnishee.

At the trial it appeared that on September 26, 1911, suit was brought by Louis A. Herbert & Son against the Penn Building Company, and the latter admitted a liability of $ 331.83 which money was paid into court. This was the fund attached. The defendants claimed that the fund belonged to a partnership composed of himself and his father, Willis A Herbert, Sr.

Verdict and judgment for plaintiffs for the fund in controversy. Defendants appealed.

Errors assigned were in refusing binding instructions for defendants, and in excluding the record of the suit against Cohen and the Penn Building Company.

Affirmed.

Charles L. Smyth, for appellants. -- There was no evidence that the copartnership was formed or conducted for the purpose of defrauding any creditor of the attached partner: Hagy v. Poike, 160 Pa. 522; Morton v. Weaver, 99 Pa. 47; Lasher v. Medical Press, 203 Pa. 313.

There was no evidence that the fund attached was the property of the attached partner: Ballantine v. Cummings, 220 Pa. 621; Richard v. Allen, 117 Pa. 199; Mengel v. Ins. Co., 5 Pa.Super. 491; Jarecki Mfg. Co. v. Hart, 5 Pa.Super. 422; Ryon v. Wynkoop, 148 Pa. 188; Horne v. Petty, 192 Pa. 32; Noble v. Thompson Oil Co., 79 Pa. 354; Reichner v. Reichner, 237 Pa. 540; Ramsay v. Myers, 6 Pa. Dist. 468; Alter v. Brooke, 9 Phila. 258.

Leon J. Obermayer, with him Mason & Edmonds, for appellees, cited: Reed v. Kremer, 11 Pa. 482; Brown v. Beecher, 120 Pa. 590; Bing v. Schmitt, 226 Pa. 622; Widdifield v. Widdifield, 2 Binney, 245.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

OPINION

ORLADY, J.

The appellant presents a very persuasive argument on this record, and if it depended alone on our reading of the testimony and deciding the question, as one of fact, we might reach a different conclusion from that of the jury. However, the determining question was purely one of fact, and was fairly presented by the court, viz: " If you come to the conclusion that Willis A. Herbert and his son were not really partners, but that the partnership articles and the holding of himself and his son out to the world as partners was but a cover or sham to defeat his creditors, and enable him to do business trading as a partnership, then your verdict should be for the plaintiff. The question for you to determine is the good faith and bona fides of Mr. Herbert and his son in this matter. If they were bona fide trading in partnership, the defendant here is entitled to your verdict. There is no money belonging to Willis A. Herbert, individually, which is subject to this attachment."

There were material contradictions in the testimony of the father and...