Reynolds v. Weinman

• Citation: 40 S.W. 560
• Court: Court of Appeals of Texas
• Decision Date: 14 April 1897
• Parties: REYNOLDS et al. v. WEINMAN et al.<SMALL><SUP>1</SUP></SMALL>

40 S.W. 560

REYNOLDS et al. v. WEINMAN et al.¹

Court of Civil Appeals of Texas.

April 14, 1897.

Appeal from district court, Burnet county; W. A. Blackburn, Judge.

Action by J. Weinman and others against N. O. Reynolds and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Chas. L. Lauderdale and W. H. Browning, for appellants. Fiset & Miller, for appellees.

COLLARD, J.

This suit was brought in August, 1888, by the appellees, the members of the firm of J. Weinman & Co. (the firm having been dissolved), against N. O. Reynolds and the sureties on his official bond as sheriff of Lampasas county (W. R. Williamson, J. M. Brown, George R. Taylor, J. W. Martin, and C. B. Marsh), for the alleged seizure and conversion by the sheriff of certain goods, wares, and merchandise described by exhibit attached to the petition, belonging to plaintiffs, which goods were taken from the possession of plaintiffs and from a storehouse in the city of Lampasas. The goods were alleged to be of the value of $3,500. The suit is for the value of the goods, interest, etc. The defendants answered, justifying the seizure; that it was by virtue of a writ of attachment at the suit of a creditor of the firm of Feigl Bros., and that Feigl Bros. owned the goods, and transferred them to Weinman & Co. to defraud their creditors, they being insolvent; Weinman & Co. being cognizant of the fraud, and parties thereto. Verdict and judgment were rendered on April 10, 1896, for the plaintiffs for the sum of $4,770.65, to bear 6 per cent. interest per annum from date, for costs, etc., from which this appeal is taken by the defendants below.

Findings of Fact.

N. O. Reynolds was sheriff of Lampasas county, and gave official bond, as alleged by plaintiffs, and the other defendants were sureties on his official bond for $5,000. As such sheriff he received an attachment issued out of the district court of Lampasas county at the suit of the Hamilton-Brown Shoe Company against Feigl Bros., a firm composed of Fred Feigl and George Feigl, commanding him to seize property of Feigl Bros. sufficient to satisfy the demand of plaintiff in attachment for $2,061.80, and by virtue of the writ he seized the goods for the value of which plaintiffs, Weinman & Co., sue. Feigl Bros. were justly indebted to the plaintiff in attachment in the amount stated. The suit of the attaching creditor was prosecuted to judgment, and the attachment lien foreclosed upon the goods levied on. The attached goods brought at sheriff's sale $2,525. The goods attached were a part of a stock of goods conveyed by Feigl Bros. to plaintiffs, Weinman & Co., previous to the attachment, in payment of a debt due by the vendors to Weinman & Co., amounting to $4,845.94. The property conveyed to Weinman & Co. was the only property owned by the firm of Feigl Bros. or the individual members thereof in absolute unconditional title subject to forced sale, except a small stock of goods in Belton, Bell county, Tex., of the value of $2,000 or $2,500, which was about the same time conveyed to another creditor, and a tract of land in Arkansas, worth about $800. At the time of the sale to Weinman & Co., Feigl Bros. were insolvent, and then owed the debt to the Hamilton-Brown Shoe Company, owing $10,000 to other creditors. Weinman & Co. knew that Feigl Bros. were insolvent, and unable to pay their debts. The debt of Feigl Bros. to Weinman & Co. for $4,845.94 was a just and subsisting debt at the time, and the goods sold were not of value more than reasonably sufficient to pay the debt for which and to pay which the goods were sold and conveyed to Weinman & Co.

The facts concerning the sale will be better understood by reciting the testimony of one of the plaintiffs (Mainthow), which testimony, we conclude, is true, giving such effect to the verdict as it is entitled to on appeal. The jury must have found his testimony true: "My name is Max Mainthow. I am 57 years of age, and one of the plaintiffs. The firm of J. Weinman & Co. was composed of Jacob Weinman, Max Mainthow, and Ernst Weinman. In 1887 it was doing business in New York. It was dissolved in 1888, and plaintiffs are successors of same. In 1887, while engaged in the wholesale jobbery business, the firm had business dealings with Feigl Bros., of Lampasas, Texas. My firm sold Feigl Bros. at various times large quantities of merchandise, and also advanced Feigl Bros. various sums of money, and paid various sums of money on their request to persons in New York City, which moneys were loaned and advanced to said Feigl Bros. by said J. Weinman & Co. On the 9th day of September, 1887, said Feigl Bros. were indebted to our firm in the sum of $4,845.94, which sum was made up as follows: By merchandise account, $3,057.02; by amount due on cash account, $1,788.92; total, $4,845.94; which amount was on that day actually due and owing us by said Feigl Bros. [The witness here exhibited an itemized statement of said account, covering about 20 pages, the first item being February 4, 1887, and the last July 16, 1887; and also an itemized statement of said cash account, beginning April 1, 1887, and ending September 8, 1887, containing the dates and amounts of payment and the names of persons and purposes to whom and for what paid, and showing, after deduction of all credits, $1,788.92 due on September 9, 1887, on such cash account by Feigl Bros. to his firm.] The names of merchants in cash accounts were those from whom Feigl Bros. had purchased, for which, at Feigl Bros.' request, our firm had paid." The witness then stated: "These two accounts are true and correct. All the payments were made and said account kept under my personal direction, supervision, and control. When goods sold were not ordered by Feigl Bros. in person, they were sold on their written orders, which I knew to be genuine. And said Feigl Bros. conceded and admitted that said accounts were correct. All the merchandise except $210.15 worth was selected by said Feigl Bros. in person, and the balance— $210.15—was sold and shipped there upon their written orders. The firm of Feigl Bros. was composed of Fred Feigl and George Feigl, and in 1887 did business in Lampasas, Lampasas county, Texas, as retail dry goods merchants. Being so indebted to J. Weinman & Co. on September 9, 1887, said Feigl Bros. on that day made a settlement of their said indebtedness to J. Weinman & Co. at Lampasas, Texas. This settlement was made with me personally, as a member of J. Weinman & Co. Said settlement was made in this way: On that day said Fred and George Feigl executed and delivered to J. Weinman & Co. a bill of sale, as follows, which bill was made as stated: `State of Texas, County of Lampasas. Know all men by these presents, that we, Fred Feigl and George Feigl, of the county of Lampasas, state of Texas, doing business under the firm name and style of Feigl Bros., for and in consideration of the full satisfaction and payment of our indebtedness to the firm of J. Weinman & Co., composed of Jacob Weinman, Max Mainthow, and Ernst Weinman, who reside in the city of New York and state of New York, which said indebtedness amounts to four thousand five hundred forty-five and 39/100 dollars, have this day bargained, sold, and delivered, and do by these presents bargain to sell and deliver, unto Jacob Weinman, Max Mainthow, and Ernst Weinman, aforesaid, all of our entire stock of wares and merchandise of whatever kind, consisting of a general stock of dry goods, boots, shoes, hats, caps, clothing, etc., also all store furniture, movable fixtures, iron safe, office furniture, etc., now contained in the two-story stone building on Third street in city of Lampasas, state of Texas, known as the "Rubenstein Building"; also that portion of said stock now contained in building on lower part of said Third street in city of Lampasas, known as the "Red Star Store," adjoining Greathouse's store. To have and to hold unto them, the said Jacob Weinman, Max Mainthow, and Ernst Weinman, their heirs and assigns, forever; and we do hereby warrant and forever defend the title to the same unto the said Jacob Weinman, Max Mainthow, and Ernst Weinman, their heirs and assigns, forever. In testimony whereof we have hereto signed our hands this, the 9th day of September, 1887. Fred Feigl. Geo. G. Feigl.' This bill of sale was executed and delivered to J. Weinman & Co. in full satisfaction and payment of the entire indebtedness of Feigl Bros. to J. Weinman & Co. The difference in the statement of the amount of said indebtedness as contained in said bill of sale and the actual indebtedness of $4,845.94 occurred in this way: On September 5th, when I left New York for Lampasas, Feigl Bros. owed our firm $4,545.39. My firm was in the habit of paying Feigl Bros.' notes and drafts that were presented to us in New York. They had repeatedly promised to pay their cash account, but had failed to do so; and about the 1st of September, 1887, several of their notes fell due, and we were, as usual, notified of it. We said we would not pay them, and some friend of Feigl Bros. managed to get said notes extended. Early in September we were notified that a note of Feigl Bros., payable to H. B. Claflin & Co., would be due and presented on September 8, 1887, for $414. I left New York September 5th, my firm agreeing to pay the note on the 8th, and telegraph me in Lampasas of its payment. We did this because we knew if it was not promptly paid Claflin & Co. would telegraph their agent in Texas, and, upon investigation of Feigl Bros.' condition, would attach or otherwise enforce a settlement of their claim. On reaching Lampasas on the 9th, I found such a telegram from my firm, stating said note was paid. I thereupon informed Feigl Bros., and they assented to the correctness of the note, but claimed a set-off on the merchandise account of something over $100, which I found in the main correct, and allowed it. This set-off would have to be...