Nicolai-Neppach Co. v. Smith
| Decision Date | 29 September 1936 |
| Citation | 154 Or. 450,60 P.2d 979 |
| Parties | NICOLAI-NEPPACH CO. v. SMITH et al. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.
On petition for rehearing.
Former opinion adhered to.
For former opinion, see 58 P.2d 1016.
Irving Rand and Charles W. Erskine, both of Portland (Fred Gronnert, of Portland, on the brief), for appellants.
R. R Rankin, of Portland (Wood, Matthiessen & Rankin, of Portland on the brief), for respondent.
Counsel for plaintiff has filed a petition for rehearing in this case and urges further consideration. As shown from the memorandum opinion, the question involved is the solvency or insolvency of the Smith & Valley Iron Works Company on the date of plaintiff's attachment, January 21, 1932.
Plaintiff for the first time has submitted figures of the assets and liabilities of the Smith & Valley Iron Works Company and struck a balance on the date mentioned. At page 18 of plaintiff's brief on petition for rehearing we find the following figures:
Assets
Accounts Receivable $
17,182.87
Inventories
58,155.04
Real Estate
48,332.50
Machinery & Tools
26,295.00
Office Fixtures
750.00
Truck
200.00
-----------
Total
150,915.41
Liabilities
127,065.59
Conclusion:
Value of assets over liabilities under defendants'
own
23,849.82
testimony
Net amount of assets over liabilities
29,855.42
The figures we made of the assets and liabilities of the Smith & Valley Iron Works Company on January 21, 1932, in our former memorandum, are as follows:
Real estate
$ 48,332.50
Accounts receivable
13,285.93
Machinery and tools
26,000.00
Merchandise on hand
8,000.00
Office fixtures
270.00
Truck
200.00
-----------
$ 96,088.43
The first difference in figures, taking them in the order that plaintiff has them, is accounts receivable, which, on the face of the books, is $17,182.87. Part of this is an account against the Weyerhaeuser Company amounting to $8,764.77, which was disputed. We figured the Weyerhaeuser account at the amount which it would liquidate at the bank. As found in the testimony of Mr. A. J. Ersted, plaintiff's witness, this account "the creditor considers to have only a nuisance value of $2,000." This account was assigned to the Hibernia Bank and was considered to fully offset an indebtedness of $5,500 to that bank, reducing the account $3,264.77, which we deducted. It is also shown beyond dispute that the Spaulding account of $632.17 is valueless, which we deducted, leaving as the amount of the accounts receivable $13,285.93. Counsel for plaintiff is pleased to state that he does not know how we get this figure.
The next item, as stated by plaintiff, is inventories, $58,155.04. This item involves the main contention in this case. On January 1, 1932, the Smith & Valley Iron Works Company, following its custom which had prevailed for years, made an inventory of the "book values" of the merchandise, and the trial court ruled out the testimony in regard to "book values." The inventory was adopted by the sheriff in making his return on the attachment. He made no new inventory, and these values went into all of the inventories made later. After the same had been ruled against by the trial court the attention of the jury was called to the same by asking the witnesses if they knew that certain figures were contained in the instruments, which contained simply the "book value" of this property. Changing the form of the inventory and inserting the same values in the sheriff's return and other documents would not validate the testimony. They still would be "book values." The testimony of Mr. A. J. Ersted, taken by plaintiff by deposition in California, in regard to the merchandise inventory is as follows:
While this is plaintiff's own testimony, in view of the fact that there was other testimony showing that the merchandise was of the value of $8,000 (see page 225 of the transcript of testimony), which is the highest figure that is mentioned in any competent evidence in the case, we took the latter figure. Counsel for plaintiff does not plainly contend that "book value" is competent evidence of the value of the merchandise on January 21, 1932, but as such values are contained in the inventories, to which we have referred, it is contended that the inventories should govern.
The testimony in the case does not show that the merchandise of the Smith & Valley Iron Works Company on January 21, 1932 was of the value of $58,155.04 placed thereon by plaintiff, or any more than $8,000, if it was of that value. Plaintiff would have little room...
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Huett v. Nevins
...the bankruptcy, Andrews v. Jones, 46 R.I. 141, 125 A. 356, 36 A.L.R. 449; Nicolai-Neppach Co. v. Smith, 154 Or. 450, 58 P.2d 1016, 60 P.2d 979, 107 A.L.R. 1138, the bond not being conditioned to pay a money demand. Young & Co. v. Howe, 150 Ala. 157, 43 So. The State court had assumed jurisd......