Winn & Lovett Grocery Co. v. Saffold Bros. Produce Co.
| Citation | 164 So. 681,121 Fla. 833 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 03 December 1935 |
| Parties | WINN & LOVETT GROCERY CO. et als. v. SAFFOLD BROS. PRODUCE CO. |
Rehearing Denied Jan. 6, 1936.
Suit by the Saffold Bros. Produce Company against the Winn & Lovett Grocery Company and others. Decree for complainant, and defendants appeal.
Affirmed. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.
Kay Adams, Ragland & Kurz, of Jacksonville, and T. Paine Kelly of Tampa, for appellants.
Hampton Bull & Crom, of Tampa, and C. O. Andrews & Son, of Orlando, for appellee.
Saffold Bros. Produce Company, on April 11, 1931, obtained judgment in the circuit court in Hillsborough county against Bailey Produce Company for $15,273.15.
The execution which was issued on that judgment in Orange and Hillsborough counties was returned nulla bona.
The creditor's bill of Saffold Bros. Produce Company filed in Hillsborough county, was dismissed without prejudice and the decree affirmed on appeal. See Saffold Brothers Produce Co. v. Winn & Lovett Grocery Co., 111 Fla. 60, 149 So 1.
Saffold Bros. Produce Company brought its amended creditor's bill in Orange county against Winn & Lovett Grocery Company, the Seminole Grocery Company, and the Bailey Produce Company, all Florida corporations, praying that the transfers of property described in the bill be declared null and void as against the lien of complainant's judgment; that the value of the property at the time of its transfer and conversion be ascertained by an accounting; that, if any substantial portion of the property can be discovered in the hands of any of defendants, it decreed subject to the lien of complainant's judgment; that, if any of said property be not recovered in kind, the defendant or defendants fraudulently appropriating it be decreed to pay the value thereof on complainant's judgment; that complainant may have a decree for the return of such other property found to have been wrongfully taken by defendants from Bailey Produce Company; and that a decree be given for the balance due thereon after applying the proceeds of the sale of property fraudulently transferred.
The bill was framed on the theory that W. R. Lovett, 'while thus representing the interests of the Winn & Lovett Grocery Co., and the Seminole Grocery Co., also secretly controlled and directed the financial operations of the defendant, Bailey Produce Co.,' and, while occupying this confidential status, caused Bailey Produce Company to make a bill of sale to Winn & Lovett Grocery Company of its 11 trucks and cars, and a chattel mortgage to the Seminole Grocery Company on all its equipment; and in November, 1930, caused the removal of all this property, secretly conveyed, from the place of business of the Bailey Produce Company in Orlando, Fla., to other places, thus impairing the rights of Saffold Bros. Produce Company, a creditor of Bailey Produce Company.
Testimony was taken before Special Master Campbell Thornal.
After final hearing of the master's report of the evidence and the briefs and arguments of counsel, the chancellor found that the conveyances complained of were executed by Bailey Produce Company to Winn & Lovett Grocery Company and to Seminole Grocery Company at the instance of grantees, secretly and fraudulently, to place the assets beyond the reach of complainant; that the property so removed has either been sold, dissipated, so mingled with defendants' property or so damaged that it is impracticable, if not impossible, to reach the same by process; that complainant's judgment at law on which execution issued was returned by the sheriff of Orange county nulla bona, and complainant has taken such other steps as are available at law and in equity to protect its legal rights; that under the bill, and within the scope left open by the former decree of the circuit court of Hillsborough county, Bailey Produce Company cannot be decreed to be a corporate fiction and Winn & Lovett Grocery Company the primary debtor; but that, where a grantee instigates a fraudulent transfer to him or it of a debtor's assets, to the damage of a creditor who had relied upon the debtor's ownership of its visible assets, and thereafter carried away and sold, and disposed of or so mingled or so damaged, said property that it was impracticable or impossible to reach or identify it, a court of equity may enter a personal decree against such grantee for the value of the property at the time such grantee took physical possession thereof.
The court found the value of the property so taken, as of the date of taking physical possession thereof by Winn & Lovett Grocery Company, less depreciation, to be:
| Trucks and automobiles less reasonable depreciation to November 1, 1930 ........... | $4,843.75 |
| Refrigerating machinery less reasonable depreciation ................................ | 2,000.00 |
| Garage equipment and tools less reasonable depreciation .................................. | 171.00 |
| Furniture and fixtures less reasonable depreciation .................................. | 427.00 |
| Produce on hand at the time of taking possession ..................................... | 75.00 |
| --------- | |
| $7,516.75 |
Final decree was entered in favor of complainant against defendants for this amount, together with interest thereon amounting to $1,394.62, and costs of $178.45.
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