Stout v. Watson

• Decision Date: 19 May 1890
• Citation: 19 Or. 251,24 P. 230
• Parties: STOUT v. WATSON et al.
• Court: Oregon Supreme Court

24 P. 230

19 Or. 251

STOUT v. WATSON et al.

Supreme Court of Oregon

May 19, 1890

Appeal from circuit court, Wasco county; J.H. BIRD, Judge.

This is an action of replevin to recover certain specific personal property alleged to be of the aggregate value of $1,334.96 and for $466 damages for the wrongful taking and detention thereof. The plaintiff recovered a verdict for $1,037.93 damages, upon which judgment was entered, from which the defendants have appealed. The answer alleges, in substance that the property in controversy, at the time of said alleged taking, was the property of T.A. Hudson and C.L. Kelsey doing business as partners under the firm name of Hudson &amp Kelsey; that on the 21st day of October, 1887, Hudson & Kelsey were indebted to the defendants Watson & Luhrs in a large sum of money, and that they commenced an action in the circuit court of Wasco county against Hudson & Kelsey, to recover the same, in which action a judgment was duly rendered and given in their favor, and against said Hudson & Kelsey, about the 20th of December, 1887, for $569.30 and costs and disbursements, taxed at $36.20; that during the pendency of said action, and before judgment, the plaintiffs duly caused a writ of attachment to be issued therein, and placed the same in the hands of the defendant George Herbert, who was at said time the sheriff, for service; and that said sheriff, by virtue of said writ of attachment, on the 24th day of October, 1887, attached and seized all of the property in controversy, and, after the entry of judgment by virtue of an execution duly issued thereon, he duly sold all of said property, and applied the proceeds on said execution, and that the same were insufficient to satisfy said execution.

(Syllabus by the Court.)

A voluntary assignment for the benefit of creditors implies a trust, and contemplates the intervention of a trustee. When a creditor undertakes, under an agreement with the assignor, to sell the property, and to apply the proceeds to the payment of his own and other debts of his assignor, and refund the surplus, he becomes a trustee, and the transaction amounts to a voluntary assignment.

. Sales are transfers in the ordinary course of business. Assignments commonly grow out of the embarrassment or suspension of business.

When H. & K. were about to be sued for a debt which they were unable to pay when it was due, made and delivered to the plaintiff a writing whereby they purported to transfer to him certain property, which was nearly all they possessed, and by the terms of the writing the plaintiff was to pay himself, and the men who had been working for H. & K. about the mill, and the residue to be applied on the debt of T. & B., held, that the same was an assignment for the benefit of creditors, and, not being for the benefit of all the creditors of H. & K., the same was avoided by section 3173, Hill's Code.

J.J. Balleray, for appellants.

F.P. Mays, for respondent.

STRAHAN, J., (after stating the facts as above.)

The only questions presented for review on this appeal, material to be noticed, are presented by the instructions which the defendant requested at the trial, and which were refused by the court. The plaintiff testified without objection, among other things, as follows: "I know all about the property described in the complaint. On October 22, 1887, it belonged to Hudson & Kelsey. It was sold to me October 22, 1887. I believe I owned it on October 24th. I came by it by bill of sale given by Hudson & Kelsey. The bill of sale is in writing. It was transferred to me on the 22d day of October 1887. On the morning of the 22d, Mr. Hudson, in company with Mr. McAllister, came down to the mill. Hudson came into the engine-room, and called me out, and gave me the bill of sale. I took it and read it. I asked him how much the indebtedness to the men amounted to. He told me he did not know exactly, but he thought about $650. He then said he wanted me to take the bill of sale, and the property, and pay myself and the men. I told him I would do it. He referred to the men in the mill. It is stated in the bill of sale. I did not know exactly who they were, or how much was owing." After describing the property, and giving other testimony, not necessary to be noticed, the witness further testified that he had no other agreement except what was contained in the bill of sale, and that was all the agreement he ever had with Hudson, and that there was no agreement outside of the bill of sale. The writing called a "bill of sale" was then offered in evidence, and is as follows: "Know all men by these presents, that, in consideration of a large sum of money due him from us for wages as engineer in the saw-mill operated by us near Wyeth Station, Wasco county, Oregon, and the further consideration of his assuming and agreeing to pay to the several workmen in said mill the wages due them by us, and the further consideration of his assuming and agreeing to pay to Tatum & Bowen, of Portland, Oregon, such portion of the amount due to them by us for machinery and material purchased by us for use in connection with said mill as shall remain to him after paying the above-mentioned claims, we do hereby grant, sell, transfer, and deliver unto John Stout, his heirs, executors, administrators, and assigns, the following goods and chattels, viz., all the railroad cross-ties now at the said saw-mill, amounting to about 3,000, also all the lumber, amounting to about 30,000 feet, also all the slab-wood, amounting to about 200 cords, and also all the saw-logs, amounting to about 50,000 feet, and also all other material now at said mill; to have and to hold, all and singluar, the said goods and chattels forever. And the said grantors hereby covenant with the said grantee that they are the lawful owners of...