Risser v. Rathburn

• Decision Date: 07 March 1887
• Citation: 32 N.W. 198,71 Iowa 113
• Parties: RISSER AND OTHERS v. RATHBURN, DEFENDANT, AND ANOTHER, GARNISHEE. SPERRY AND OTHERS v. RATHBURN, DEFENDANT, AND ANOTHER, GARNISHEE.
• Court: Iowa Supreme Court

71 Iowa 113

32 N.W. 198

RISSER AND OTHERS

v.RATHBURN, DEFENDANT, AND ANOTHER, GARNISHEE.

SPERRY AND OTHERS

v.RATHBURN, DEFENDANT, AND ANOTHER, GARNISHEE.

Supreme Court of Iowa.

March 7, 1887.

Appeal from district court, Pocahontas county.

Action by attachment against defendant Rathburn, in which Bothwell was garnished. An issue upon the answer of the garnishee, denying indebtedness to defendant, was in each case tried to a jury. A judgment for plaintiff was in each case rendered against the garnishee upon special findings for plaintiff. The garnishee appeals. The cases were submitted together upon the same abstract and argument.Robinson & Milchrist, for appellant.

Henry S. Wilcox, for appellee.

BECK, J.

1. The garnishee, Bothwell, in his answer denies that he is indebted to the defendant, or has in his possession or under his control any property rights or credits of the defendant. He admits that he purchased of defendant a stock of merchandise, but alleges that defendant was indebted to him in the sum of $500 for goods sold and money loaned, and alleges that, in payment of the debt, he took the stock of merchandise with the agreement that, if he could sell it for more than the debt, such overplus, after deducting expenses incurred in handling the goods, should go to defendant. He shows in his answer that he sold the goods for $600; that the expenses of handling them was $25; and that he is ready to account for the balance remaining in his hands. He afterwards paid into court $40, which he admits is due from him to defendant. The answer of the garnishee is denied by proper pleadings filed by plaintiff, in which it is averred that the stock of goods alleged to have been sold by defendant to the garnishee was of the value of $1,200, for which the garnishee paid $530, leaving a balance due defendant of $670. In another count of their pleadings, plaintiffs allege that the sale of the goods by defendant to the garnishee was made with the purpose and intention on the part of both to defraud plaintiffs and other creditors of defendant, and is therefore void, and that, at the time of the service of the garnishee process, the garnishee was in possession of the goods, which he has converted to his own use. It is alleged that the goods were of the reasonable value of $1,200. Under an agreement of the parties, the two causes were tried together, and are submitted in the same manner in this court.

The district court directed the jury to return special findings in response to the following questions submitted to them. Their findings are indicated by the answers following the questions:

“Submitted by the court on its own motion: (1) What was the actual value of the goods at the time of sale to Bothwell? Answer. $1,030. (2) What was the reasonable value of the expenses and services of Bothwell in taking and negotiating a sale of the goods? A. $25. (3) How much was the entire consideration to be paid by Bothwell for the goods under the contract of purchase? A. $1,000. (4) Under the contract of purchase, was the garnishee to pay the defendant anything above $541.74, which defendant was owing the garnishee? A. Yes. (5) If you answer the foregoing interrogatory by ‘yes,’ then state how much the garnishee was to pay for the goods above the sum of $541.74. A. $488.26.

Submitted at the request of plaintiffs, Sperry, Watt & Garver and Chas. E. Risser & Co.: (1) Was the garnishee indebted to defendant on the twelfth day of May, 1884, at the time of the service of the notice of garnishment in the case of Risser & Co. v. Rathburn? If so, state the amount. Answer. $488.26. (2) Was the garnishee, Bothwell, indebted to defendant on the nineteenth day of May, 1884, at the service of notice of garnishment in the case of Sperry, Watt & Garver v. Rathburn? If so, state the amount. A. $463.26. (3) What was the fair market value of the property conveyed to the garnishee by the defendant on the tenth day of May, 1884, at the time of sale? A. $1,030. (4) Was the sale by defendant to Bothwell on the tenth day of May, 1884, made by defendant with an intent to defraud his other creditors? A. Yes. (5) If you answer ‘yes' to question No. 4, state whether said garnishee knew of such intent at the time of the sale. A. Yes. (6) Was there a secret agreement or understanding between the defendant and the garnishee that said garnishee should invoice the property sold him by said defendant, and pay the said defendant the amount said goods should invoice over and above the amount said defendant owed said garnishee? A. Yes. (7) Was there a secret agreement or understanding between the defendant and said garnishee that the said garnishee should sell said stock of goods, and pay to defendant the amount realized from said sale, after deducting reasonable compensation for his service and expenses in making the same, and the indebtedness of said defendant to said garnishee? A. Yes.

Submitted at the request of the garnishee: (1) Did the garnishee have any fraudulent purpose in purchasing the goods of Rathburn? Answer. Yes. (2) Was the purpose of...