West v. Hanson Produce Co.

• Citation: 41 P. 829,6 Colo.App. 467
• Parties: WEST v. HANSON PRODUCE CO.
• Decision Date: 09 September 1895
• Court: Court of Appeals of Colorado

41 P. 829

6 Colo.App. 467

WEST v. HANSON PRODUCE CO.

Court of Appeals of Colorado

September 9, 1895

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 69 P. 607

Appeal from district court, La Plata county.

Action by attachment, by the Hanson Produce Company against the Durango Meat & Produce Company (George E. West, assignee in insolvency of defendant, garnishee). From a judgment against defendant and garnishee, the garnishee appeals. Reversed.

The Hanson Produce Company brought suit by attachment against the Durango Meat & Produce Company. Judgment by default was taken. In the attachment proceedings, appellant was garnished, and answered each interrogatory in the negative. The answer was traversed by the plaintiff, and trial had to the court, without a jury, on the following agreed statement of facts: "First. That the Durango Meat & Produce Company, on and prior to the 5th day of July, 1893, was a corporation existing under the laws of the state of Colorado and the same as to the plaintiff, the Hanson Produce Company. That on and prior to the 5th day of July, 1893, the Durango Meat & Produce Company was carrying on a business in the town of Durango, and that on the 5th day of July it was in an insolvent condition. That prior to July 5 1893, Frank Wingate, Robert A. Ambold, and Lisle Wainwright were directors, or trustees, rather, of the said corporation and that Lisle Wainwright was president, Frank Wingate was secretary, and Robert A. Ambold was general manager of the business. That, prior to July 5th, Frank Wingate, Lisle Wainwright, and Robert A. Ambold had signed and given to the First National Bank of Durango two promissory notes, amounting to $5,500. That the money was borrowed by the company, and these parties became security for it, but the bank would not take the company's paper, and these three parties named gave their notes, direct to the bank, for the payment of the said money. When these notes became due, in the bank, the Durango Meat & Produce Company was unable to pay them, and they turned what stock of goods they had on hand, fixtures, tools used in their business, and book accounts, over to John Harper, Lisle Wainwright, and Robert A. Ambold, as security to pay the amount due on those two notes in the bank. These three parties, in a day or two afterwards, by and with the consent of all parties, except the plaintiff in this action, turned the same over to George West, the garnishee in this action, under contract and understanding that he was to proceed to sell the goods, and pay the money in, direct, to the bank, and have it credited on these notes, and he did sell the goods, and turn the money in, and had it credited on the notes; and George West had possession of the goods and accounts at and before the garnishment in this action was served upon him, and afterwards continued to sell as theretofore, and apply the proceeds on the notes. That the value of the property and accounts was sufficient to pay the amount of plaintiff's judgment and costs in this action, but would not be sufficient to pay the said two notes given to the bank. That John Harper, mentioned herein, acted as agent of Frank Wingate. At the time the transfer was made, Messrs. Wainwright, Wingate, Ambold, and West all knew that the company was insolvent. At the time of this transfer, and previous thereto, and from thence hitherto, the Durango Meat & Produce Company was indebted to the Hanson Produce Company in the sum of $376.90. That the Hanson Produce Company has recovered judgment in this case against the Durango Meat & Produce Company for the sum of $376.90 and costs. That this transfer included all the personal property, of every kind and description, owned by the Durango Meat & Produce Company. That at the time that that company made this transfer to Harper, Wainwright, and Ambold, it was carrying on business in the city of Durango, La Plata county, Colorado." Upon which the court made the following finding, and caused judgment to be entered: "And it being shown to the court that the Hanson Produce Company is plaintiff in attachment against the Durango Meat & Produce Company, and that the said George E. West was garnished to secure the claim of the said the Hanson Produce Company against the said the Durango Meat & Produce Company, and that judgment was heretofore rendered in favor of the said the Hanson Produce Company against the said the Durango Meat & Produce Company for the sum of $376.90 and costs, amounting to $7.77 1/2, and the court further finding the facts to be as stated in said stipulation, it is hereupon ordered, adjudged, and decreed that the said transfer of personal property by the said the Durango Meat & Produce Company to the said George E. West be held fraudulent and void as to the said the Hanson Produce Company, and the said the Durango Meat & Produce Company, for the use of the said the Hanson Produce Company, do have and recover of the said George E. West, garnishee, the sum of $376.90 and the costs of said garnishment proceedings, to be taxed at $7.77 1/2, and hereof let execution issue. To which finding and...