Shelly v. Heater
| Decision Date | 13 May 1885 |
| Parties | SHELLY v. HEATER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Richardson county.
F. Martin, for plaintiff.
Isham Reavis, Aug. Schoenheit, and E. W. Thomas, for defendants.
This is an action of replevin for a stock of goods. The petition is in the usual form, alleging the ownership of the goods. The action was originally brought against the sheriff, who held them under an order of attachment. Upon motion of the sheriff, the attachment plaintiff was substituted as defendant, and is defendant in error in this court.
The substituted defendant (Heater) filed his answer, the allegations of which are, in substance, that the sheriff, who had possession of the property, held by virtue of an order of attachment issued in an action wherein Heater was plaintiff and Donald Bros. and Shelly were defendants. The right of possession and ownership of Shelly were denied, and it was alleged that on the twenty-sixth day of January, 1884, he (Heater) was engaged in the business of operating a store of general merchandise, carrying a stock of the value of $5,000, and at that time he was indebted to various parties for goods bought, aggregating about $3,500, and among his creditors was the firm of Donald Bros., of Atchison, Kansas, to whom he owed $506. That Donald Bros. and the other creditors were pressing him for money, and being unable to pay them in any other way, at the instance and request of Donald Bros. he entered into an agreement with them by which he executed to them a bill of sale for the goods, and delivered the stock to them to sell out in the usual course of trade in the store where they were; the proceeds arising from the sale to be applied by them, first, to the payment of their debt, and afterwards to the payment of the other debts of the store, until all were paid,--the remainder to be paid to him “in extinguishment of the obligation incurred by them in the purchase of said stock of goods from him.”
The answer further alleges that it was agreed that Donald Bros. should secure him “for the purchase price of said goods, and the faithful performance of their part of said agreement in the application of the proceeds of the sale of said goods to the payment of the debts, and the payment of the excess” to him, and had agreed to execute to him a bond in the sum of $5,000, with sureties, conditioned upon such performance; and they thereupon employed him, at a stipulated price per week, to remain in the store and assist them in making the sales, and also to see that the contract upon their part was duly performed. That, relying upon their promise to perform the contract, he executed to them a bill of sale, and delivered to them the possession of the store and goods on Saturday afternoon; the bond to be executed the following Monday. That plaintiff, Shelly, was resident of the same town in which the store was situated; was in the store immediately after the transaction, as well as during a part of Saturday night, and most of the day on Sunday, and during part of Sunday night, and was fully acquainted with all the facts of the transfer; and on Monday morning gave out and pretended to have purchased of Donald Bros. the entire stock of goods for $2,100. This purchase is alleged to have been a sham and a fraud. That Donald Bros. left on Sunday night or Monday morning without executing the bond agreed upon, but that before going they transferred the whole stock to Shelly in violation of the rights of defendant and his other creditors. That Donald Bros. and Shelly confederated to cheat defendant by taking advantage of his necessities, and by means of the fraudulent sale to Shelly. That thereupon he had instituted a suit in equity against Donald Bros. and Shelly, reciting the facts, giving the names of his creditors for whose benefit the transfer was made, praying the appointment of a receiver to take charge of the goods, that they might be sold, and the proceeds brought into court and distributed equitably among his creditors, the sale to Shelly set aside as fraudulent, and that he had caused an order of attachment to issue, and...
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