William B. Grimes Dry-Goods Co. v. Shaffer

• Decision Date: 06 June 1894
• Citation: 59 N.W. 741,41 Neb. 112
• Parties: WILLIAM B. GRIMES DRY-GOODS CO. v. SHAFFER.
• Court: Nebraska Supreme Court

41 Neb. 112

59 N.W. 741

WILLIAM B. GRIMES DRY-GOODS CO.

v.SHAFFER.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

1. Where the existence of a fraudulent intent in making and receiving a transfer of a debtor's property is to be determined by evidence collateral to the writing, whereby was effected the alleged fraudulent transfer, such question is determinable alone by the jury. Houck v. Heinzman, 55 N. W. 1062, 37 Neb. 463, followed.

2. Where a bill of sale of a stock of goods was made by a debtor in failing circumstances to one of his creditors, who took the bill of sale with the agreement that he was to receive the property, make sales from it, and with the proceeds reimburse himself for antecedent indebtedness due him, and for advances made to discharge levies upon the said stock, and, after such reimbursements were complete, to return to the debtor whatever should remain of such stock, held, that a verdict sustaining the contention that such transfer was fraudulent, as against existing creditors of the maker of the bill of sale, should not be disturbed.

3. Whether or not the deposition of a witness should be received in evidence must be determined from the facts in existence at the time of the trial; and if, at that time, it is shown that the witness does not reside in, or has removed from, the county wherein the trial is proceeding, his deposition, otherwise unobjectionable, is receivable in evidence.

Error to district court, Harlan county; Cochran, Judge.

Replevin by the William B. Grimes Dry Goods Company against Jennie Shaffer. From a judgment for defendant, plaintiff brings error. Affirmed.

Edgar C. Ellis and C. C. Flansburg, for plaintiff in error.

Morning & Keester and W. S. Morlan, for defendant in error.

RYAN, C.

On the 14th day of November, 1888, Frank Shaffer, a merchant at Alma, Neb., made a bill of sale of his entire stock to the William B. Grimes Dry-Goods Company, of Kansas City, Mo., to which company he was indebted in the sum of about $1,500. After the execution of this bill of sale, possession was thereunder taken by the grantee of the stock of goods conveyed. Subsequently executions on judgments in favor of Jennie Shaffer against Frank Shaffer, to the aggregate amount of about $2,000, were levied on the aforesaid stock. These goods were replevied by the plaintiff in error from the sheriff, in whose stead Jennie Shaffer was substituted as defendant. She obtained a verdict establishing her interest to the amount of the judgments in her favor, upon which verdict a judgment was duly rendered. Edgar C. Ellis, the general attorney and general agent of the Grimes Dry-Goods Company's credit department, had, a few days before the date of the above-mentioned bill of sale, reached Alma, in response to a telegram from Mr. Shaffer. Mr. Ellis was sworn on the trial of this cause, which was had in the district court of Harlan county. He testified as follows: “On arriving here, I saw Mr. Shaffer at his hotel, and learned from him that his stock of goods had been seized by the sheriff of this county, under executions amounting to $3,600. I further learned from him that he had confessed judgment in favor of the plaintiff in this action for the sum of about $1,500, as I remember. Mr. Shaffer requested me to make an effort to save his goods from sale under execution. After being here a couple of days, and looking the field over, I finally entered into an agreement and this bill of sale. I bought the stock of goods, paid off the executions for $3,600, and costs, and I receipted his claim to us. There was something over $200 worth of goods at the depot then not levied on. The total amount of executions levied on the property, and the judgment he had confessed in the county court, and the merchandise at the depot, amounted only to $5,286.” On his cross-examination, Mr. Ellis testified that the goods were shipped from Alma to Kansas City, and from thence sold to some party in Kansas; that, after taking possession, he retained it about 24 hours, and then turned the goods over into the possession of W. H. Cook, and that he (Mr. Ellis) hired Mr. Turner to assist Mr. Cook, after consulting with Mr. Shaffer as to the advisability of so doing. As to the conversation between himself and Mr. Shaffer relative to the execution of the bill of sale, Mr. Ellis, on cross-examination, testified as follows: “We had different conversations, extending through two days, about this matter. Mr. Shaffer expressed himself as very anxious that I should take the property. He told me that unquestionably, at sheriff's sale, the property would not pay off the executions; that the goods would not bring more than one-third or one-half of what they were worth under the sheriff's hammer. He said that he was very desirous that the company should have their pay; that, since this trouble a year before, our company had treated him very nicely, and he confessed judgment that we might be safe, and it was the only way to prevent the sale. I told him there was not enough in it to justify paying off the executions. I made a thorough investigation, and finally told him I would take the property; and I drew on the company for the $3,600 to pay off the execution, if he would give a bill of sale. This he expressed himself very glad to do. He expressed himself to me as very confident that in a short time he would be able to get out of his embarrassment. He told me of a section of land to the south of here somewhere, that was heavily mortgaged, but he thought he could dispose of his equity in it, and get rid of his indebtedness, and resume business. He also said during his conversation that there were more goods in the store than I thought there were. I told him when I took the bill of sale that, if he did sell his land and get the money, I would be perfectly willing at any time to step out with my money.” In answer to the question whether or not Mr. Shaffer told him that he owed others, Mr. Ellis said he thought Mr. Shaffer so told him. Mr. Ellis, in his evidence, denied that there was any arrangement or agreement with Mr. Shaffer other than as shown by the writings introduced in evidence. The bill of sale, which Mr. Ellis identified, and which was introduced in evidence, was of date November 14, 1888, signed by Frank Shaffer, and was made to the William B. Grimes Dry-Goods Company, for the consideration recited of the sum of $5,286. By its terms, it was an absoluteconveyance of the stock of goods owned by Shaffer, and which was described with considerable minuteness. There was also introduced in evidence a writing in the following terms: “Alma, Nebraska, Nov. 15, '88. Having this day purchased of Frank Shaffer, of Alma, Nebr., his...