Simmons Hardware Co. v. Rhodes
Citation | 7 F.2d 352 |
Decision Date | 15 June 1925 |
Docket Number | No. 6771.,6771. |
Parties | SIMMONS HARDWARE CO. et al. v. RHODES et al. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Arthur L. Adams, of Jonesboro, Ark. (Morton Jourdan and Fred L. English, both of St. Louis, Mo., H. M. Cooley and Robert E. Fuhr, both of Jonesboro, Ark., and George N. Dunn, of St. Louis, Mo., on the brief), for plaintiffs in error.
J. T. Coston, of Osceola, Ark. (W. J. Driver and S. R. Simpson, both of Osceola, Ark., on the brief), for defendants in error.
Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.
The record in this case brings before this court for review this question: What is the legal effect of a written trust agreement of general assignment of all the property of a debtor for the benefit of creditors; said assignment being conditioned by a parol contemporaneous agreement that the debtor is to have all its debts absolutely satisfied and extinguished as a consideration for the making of the assignment?
This question came into this litigation by way of an amendment to the answer, and is pleaded in this language: "The facts are, as the plaintiff well knows, that on the 7th day of August, 1923, the plaintiff agreed if Segraves Hardware Company would turn over and deliver to G. N. Dunn and M. J. Burke, trustees, all of its assets, that the same would _____ received and treated as a payment and satisfaction in full the demand of plaintiff and other creditors, and thereupon the said Segraves Hardware Company executed and delivered to G. N. Dunn and M. J. Burke, trustees, an assignment or conveyance of all of its assets of whatever nature and wherever situated."
To this amendment to the answer so declaring, the written assignment to the trustees was attached and made a part of the same. However, the written assignment does not contain any such release as pleaded. Wherefore, if shown by defendants, the same must have been shown to rest in parol.
At the trial, the defense offered evidence to establish the release of the corporation from its indebtedness pleaded was made contemporaneously with the written agreement and as a consideration for its making, and that the same rested in parol. To this evidence plaintiff objected at the time, which objection was overruled and exception saved. The trial court charged the jury, if it found the written assignment was conditioned when made by the parol agreement for release of the corporation from its indebtedness claimed, then the corporate indebtedness was thereby extinguished, and a verdict for defendant should be returned. As a verdict was returned for defendant by the jury, it must have found the parol agreement was made as claimed by defendants.
This controversy and result arose out of this state of facts:
The Segraves Hardware Company, a corporation of Arkansas, was engaged in business at the town of Osceola, Mississippi county, Ark. Of this corporation one C. B. Segraves was president and Joe W. Rhodes, Jr., was secretary. The state of Arkansas has a statutory provision making it the duty of the president and secretary of all corporations to make certain reports, certify the same, and file with the county clerk of the county in which the corporation is engaged in business concerning its corporate actions and affairs. And if this corporate duty is not performed, another statute makes said officers liable for all debts contracted during the default of the officers. These statutory provisions are found in sections 1715 and 1726, Crawford & Moses' Digest of Arkansas Statutes, and provide as follows:
On August 7, 1924, the Segraves Hardware Company being heavily indebted, made what is called a trust agreement; the same being a general assignment of all its property to G. A. Dunn, a representative of the Simmons Hardware Company and M. J. Burke, a representative of the John Deere Plow Company, as trustees. A further like assignment seems to have been made on September 21, 1923. Shortly after the making of this assignment the officers of the hardware company and the trustees made or attempted to make a sale of the assets of the hardware company to a firm known as N. G. Cartright & Son of Osceola. However, this trade was never consummated, for the reason bankruptcy proceedings intervened, and the estate of the hardware company was administered in the bankruptcy court. As the indebtedness of the hardware company to Simmons Hardware Company and the John Deere Plow Company was quite large in amount, an action was brought by each of said companies against Segraves, the president, and Rhodes, the secretary, of said Segraves Hardware Company to enforce their statutory liability as provided in the statutes of Arkansas above quoted. By way of amendment to the...
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