Selz Schwab & Co. v. Mayer

• Decision Date: 03 November 1898
• Citation: 51 N.E. 485,151 Ind. 422
• Parties: SELZ SCHWAB & CO. et al. v. MAYER et al.
• Court: Indiana Supreme Court

151 Ind. 422

51 N.E. 485

SELZ SCHWAB & CO. et al.

v.MAYER et al.

Supreme Court of Indiana.

Nov. 3, 1898.

Appeal from circuit court, Fulton county; Geo. W. Holman, Judge.

Action by the John V. Farwell Company and others against Sigmund Mayer and others. Judgment for defendants, and plaintiff Selz Schwab & Co. appeals. Affirmed.

Harley A. Logan, for appellant. Leopold M. Lauer, Charles P. Drummond, and Samuel Parker, for appellees.

McCABE, J.

The John V. Farwell Company, the Durand & Kasper Company, the Havens & Geddes Company, and Selz Schwab & Co., being four several corporations, as judgment creditors of a part of the defendants, sued the appellees to compel the application of certain assets in the hands of the defendants, to be applied to the payment of the plaintiffs' several judgments, to set aside a certain mortgage of certain goods as fraudulent, the sale of the property mortgaged, and the application of the proceeds to the payment of the several judgments of the several plaintiffs, and asking the appointment of a receiver. The issues formed upon the complaint were tried by the court, resulting in a special finding of the facts, upon which the court stated conclusions of law leading to judgment for the defendants. The conclusions of law and the trial court's refusal to award a venire de novo are called in question by the assignments of error. All of the plaintiffs have been joined as appellants in this court, but all of them, except Selz Schwab & Co., having been notified, have declined to join in the appeal. The action was commenced in the Marshall circuit court, and afterwards the venue was changed to the Fulton circuit court. The substance of the facts found is: That Sigmund Mayer and Lambert Nussbaum, both of Plymouth, Marshall county, Ind., for many years prior to February 28, 1896, were engaged in business at said Plymouth, as merchants, under the firm name of Nussbaum & Mayer. That during said time they established a general store in the village of Marmont, in said county, and in the year 1896 took as a partner in the business at Marmont one Henry M. Speyer, said business in said town being carried on under the firm name of Nussbaum, Mayer & Co. Said firm of Nussbaum & Mayer, of Plymouth, furnished all the capital for the business at Marmont, and that firm was to have one-half of the profits of the business at Marmont, and Speyer the other half. Said Speyer was to superintend and manage the business at Marmont in consideration of his said share of the profits. During the existence of said partnership at Marmont, and some time prior to February 28, 1896, said firm of Nussbaum, Mayer & Co. became indebted to the plaintiff the John V. Farwell Company, and was so indebted on said date in the sum of $1,390.20, and to the Durand & Kasper Company in the sum of $247.89, to Selz Schwab & Co. in the sum of $1,049.68, and to the Havens & Geddes Company in the sum of $299.41. That the claims of said plaintiffs were afterwards, but before the bringing of this action, reduced to judgment in the Marshall circuit court, which claims are unpaid. That on said date said Nussbaum, Mayer & Co.'s assets consisted of a stock of goods of the value of between $4,000 and $5,000, notes and accounts due the firm of about $1,000, and of real estate, consisting of a store building and some lots of the value of about $2,000, and had no other property. That said firm was then indebted for borrowed money and for goods in the sum of $10,500, and was insolvent. That the firm of Nussbaum & Mayer, of Plymouth, a member of the firm of Nussbaum, Mayer & Co., of Marmont, on said date had assets, consisting of real estate, goods, notes, and accounts, of the value of about $9,000, and was indebted for borrowed money and for goods about $13,000, and was insolvent. That on said date said Nussbaum & Mayer, as one member, and said Henry M. Speyer, as the other member, of the Marmont firm, entered into a written agreement of dissolution of the same, providing therein, as a consideration for the withdrawal of Speyer therefrom, the assumption by Nussbaum & Mayer of all indebtedness of said firm of Nussbaum, Mayer & Co., and the surrender and satisfaction of the indebtedness of about $300 due from Speyer to the firm of Nussbaum, Mayer & Co., providing in said instrument that the dissolution was not to take effect until the next day, February 29th; that there was no other consideration for such dissolution. That on the next day, February 29, 1896, said Henry M. Speyer, in pursuance of said contract, transferred to said Nussbaum & Mayer all of his interest in the assets of the firm of Nussbaum, Mayer & Co., and retired from the firm. That, on said last-mentioned date, said Nussbaum & Mayer, as a firm and as individuals, executed a mortgage on all the real estate and goods, which constituted assets of the dissolved firm prior to said dissolution, and on the assets of the firm of Nussbaum & Mayer, of Plymouth, to secure notes executed by them and others, aggregating $6,474.61, which included a part of the indebtedness of the firm of Nussbaum, Mayer & Co.; and said mortgage secured notes described therein for the indebtedness of Nussbaum & Mayer, said notes all bearing the said date of February 29, 1896, and falling due 30 days thereafter, and signed Nussbaum & Mayer, aggregating $10,756.33. That said mortgage was duly executed and acknowledged on said February 29, 1896, and recorded in the office of the recorder of Marshall county, on March 2d, following. That on January 21, 1896, Sigmund Mayer was the owner of a dwelling property constituting his home in Plymouth, which on that day he conveyed to his two sons. That Henry M. Speyer was the owner of a dwelling property and a livery barn in Marmont, worth $1,200, but on which was a mortgage of $300. That, on said 29th day of February, he executed a mortgage to his mother on said property in the sum of $880.37, being a pre-existing debt. That he was then insolvent. That on January 29, 1896, said Lambert Nussbaum was the owner of a dwelling constituting his home, and which he conveyed to his wife. That all of the items of indebtedness described in said mortgage were for money borrowed from time to time, by the respective firms, covering a period of 10 years previous to February 29, 1896, which was evidenced by promissory notes, some of which were renewed from time to time, and the money derived therefrom was used in the business of the respective firms. That on said February 29th some of said notes were due, and some were not due, but all were surrendered on that day, and the notes described in the mortgage executed took the place of the others. That there was no other consideration for the execution...