Tobias v. Treist

• Decision Date: 21 June 1894
• Parties: TOBIAS ET AL. v. TREIST ET AL.
• Court: Alabama Supreme Court

15 So. 914

103 Ala. 664

TOBIAS ET AL. v. TREIST ET AL.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Attachment by Treist & Co. against M. Nathan, and T. Tobias & Co. interposed their claim to the property. From a judgment against claimants, they appeal. Corrected and affirmed.

The proceedings in this case were had upon the statutory trial of the right of property, which was instituted by T. Tobias &amp Co. interposing a claim to certain goods and merchandise which had been levied upon as the property of M. Nathan doing business under the firm name of M. Nathan & Co., under an attachment sued out by the appellees, Treist & Co. The claimants based their right to the property levied upon under said attachment upon a bill of sale which had been made and executed by M. Nathan to them in payment, as recited in the said bill of sale, of an indebtedness to T. Tobias & Co. of $3,737. This indebtedness was evidenced by four notes, and in payment thereof the said Nathan conveyed a portion of the stock of goods contained in his store at Bessemer, Ala. He also, about the same time, conveyed the rest of his stock of goods to Ida Levy and A. Klosky in payment of indebtedness to each of them. The bill of sale of the claimants in this case T. Tobias & Co., was executed on December 26, 1892. At the time of the execution of this bill of sale, said M. Nathan was indebted to the firm of Treist & Co. for goods which had been sold by them to him, and it was for the collection of this indebtedness that the writ of attachment was sued out. The main issue of fact in this case, as is shown by the bill of exceptions, was as to the value of the goods owned by said M. Nathan on December 26, 1892, the day of the execution of the bill of sale to the claimants. Bob Crook, one of the witnesses for the plaintiffs, after testifying that he had worked for Nathan in November and December, 1892, and had been engaged in the dry-goods business for several years further testified that the market value of the goods in the store of Nathan between December 20 and 26, 1892, was from $18,000 to $20,000. During his examination he testified that he had seen several stocks of goods worth $10,000, and that Mr. Rosenbaum's stock was worth over $10,000. He was then asked by the claimants, "How much more?" The plaintiffs objected to this question on the ground of its being immaterial. The court sustained the objection, and the claimants excepted. One Hardin Cobbs, a witness for the plaintiffs, testified that he was assistant cashier of the bank with which the firm of M. Nathan & Co. did its business and made their deposits. He also testified as to the amount of his deposits during the months of August, September October, November, and December, which was to the effect that his deposits in September, 1892, were $500 less than in August, his October deposits $300 or $400 less than the September, and the December deposits $1,600 less than the July deposits. The claimants objected to this testimony, and moved to exclude the same, on the ground that it was immaterial to the issue in this case. The court overruled their motion, and the claimants duly excepted. Upon the examination of the insurance agent with whom the said Nathan took out policies of insurance upon his goods during the year 1892, he was asked: "What was the amount of policies on his stock of goods in Bessemer?" The claimants objected to this question on the ground of its being irrelevant and immaterial, and duly excepted to the court's overruling their objection. The witness answered that the amount of the first insurance was $25,000, which expired in January, 1893, and that between July and October he had $6,500, which was on all his dry goods. M. Nathan, in his testimony as a witness for the claimants, testified that the cost of the goods sold to T. Tobias & Co. was $4,651, and that their actual worth on the market would not exceed $3,235. It was also shown that the inventory of the goods sold to claimants, which was attached to the bill of sale, was made after T. Tobias, a member of said firm, arrived in Bessemer, the day before the execution of the bill of sale, and that upon Tobias agreeing to take the goods in payment of his indebtedness against the said M. Nathan & Co. the inventory was taken, and the bill of sale made the day following his arrival in Bessemer. There was much testimony introduced to show how long it would take to make out an inventory of a stock of goods the size of that of M. Nathan & Co. The testimony for the plaintiffs tended to show that it would taken much longer than the time in which the witness for the claimants testified that an inventory in this case was taken. To this portion of the testimony introduced by the plaintiffs the claimants objected, and duly excepted to the court's overruling their several objections. Upon the return of the verdict for the plaintiffs the claimants moved the court to set aside the said verdict, and to grant them a new trial. The grounds of this motion were that the verdict was contrary to the evidence, and that it was contrary to the charge of the court to the jury. It is not shown that there was any evidence introduced in support of this motion. The motion for a new trial was overruled, and the claimants duly excepted. The judgment entry contained the following...