Walker v. Tenison Bros. Saddlery Co.

• Decision Date: 07 April 1906
• Parties: WALKER v. TENISON BROS. SADDLERY CO.
• Court: Texas Court of Appeals

94 S.W. 166

WALKER v. TENISON BROS. SADDLERY CO.

Court of Civil Appeals of Texas.

April 7, 1906.

Error from District Court, Dallas County; Richard Morgan, Judge.

Action by John W. Walker against the Tenison Bros. Saddlery Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Wendell Spence, for plaintiff in error. Cockrell & Gray, for defendant in error.

TALBOT, J.

Plaintiff in error, Walker, as trustee of the bankrupt estate of Fred Strube, brought this suit against Tenison Bros. Saddlery Company to recover certain amounts of money alleged to have been received by it from the said Strube, as preference, within four months next preceding the date when said Strube was adjudged a bankrupt. It was alleged in substance that the said Strube was adjudged a bankrupt December 16, 1902, and that on September 6, 1902, as a debtor of defendant, and while insolvent, he made a payment of $200 on the debt due by him to it; and on November 14, 1902, made a further payment thereon of $925.20; that each of said payments had the effect to give defendant in error a preference and enable it to collect and obtain the full amount of its debt against the said Strube while other creditors of the said Strube, by reason thereof, will be able to collect on their debts against him only about 33 1/3 per cent.; that defendant, at the time it received the said payments of money had reasonable cause to believe the same was intended as an unlawful preference to it over other creditors of the said Strube of the same class, and with such notice received the same in each instance as such preference. Plaintiff prayed judgment against defendant, declaring each of said payments or transfers of money to be a preference within the meaning of the bankrupt act, and that he have judgment against defendant for the value thereof in the sum of $1,125.50, with interest and costs. Defendant answered by general demurrer and general denial; confessed by special plea that the bankrupt, Fred Strube, paid to it the amounts of money at the times charged, but alleged that it received and accepted such payments in the due course of business in good faith, and without any knowledge whatever of Strube's insolvency, if he was insolvent, and without any reasonable cause to suppose or believe that he was insolvent, and that such payments were intended as, or would give to it, a preference over other creditors of the said Strube. A trial by jury resulted in a verdict and judgment for defendant from which plaintiff in error has appealed.

It was admitted in the trial court that there was no evidence which would authorize the avoidance of the item of $200 as a preference; and the sole issue made by the evidence and submitted to the jury in that court was whether the defendant in error when it received the payment of $925.20, had reasonable cause to believe that it was intended by the bankrupt Strube to thereby give it a preference within the meaning of the bankrupt act, over other creditors in the payment of his debts. Plaintiff in error's assignments of error assert that the determination of this issue by the jury favorable to the defendant in error is unsupported by the evidence, and they present no other question. The substance of the evidence is that Fred Strube was doing a saddlery and harness business in Shawnee, Okl., and on November 12, 1902, sold out for $4,002.80; that his bankruptcy was precipitated by reason of having been fraudulently induced to sign a double series of notes to a buggy company for the same debt, which notes passed into the hands of innocent holders and created an indebtedness of $4,000 instead of the actual amount due $2,000. Strube owed when he paid defendant in error's account about $8,000 or $9,000 and his assets amounted to about $4,000 or $5,000.

A. P. Tenison was the president and agent of defendant in error and went from Dallas, Tex., to Shawnee, Okl., where Strube had been conducting his mercantile business, to see him with a view of collecting a...