Winstead v. Hulme

• Decision Date: 07 November 1884
• Citation: 32 Kan. 568,4 P. 994
• Court: Kansas Supreme Court
• Parties: W. W. WINSTEAD, as Sheriff, &c., v. G. H. HULME

4 P. 994

32 Kan. 568

W. W. WINSTEAD, as Sheriff, &c., v. G. H. HULME

Supreme Court of Kansas

November 7, 1884

Error from Barton District Court.

ACTION by Hulme against Winstead, as sheriff of Barton county commenced August 29, 1879, to recover possession of certain goods and chattels of the value of $ 270.65. The petition also alleged that the defendant, by the unlawful seizure of the goods and chattels, damaged and injured the business of plaintiff in the sum of $ 2,300. On September 25, 1879, the defendant filed his answer, in which he generally denied all the allegations of the petition. At an adjourned term of court, and on March 7, 1883, the cause came on for trial before the court and jury. The jury returned the following verdict, omitting title:

"We the jury impaneled and sworn in the above-entitled cause, do upon our oath find for the plaintiff that he have the return of the goods described in the affidavit in this case, or if they cannot be returned, then that the plaintiff recover of the defendant the value of said goods, assessed at $ 270 together with $ 190 as damages for their unlawful taking and detention."

The jury also made the following special findings of fact:

"1. Did Hulme & Negbaur sign a redelivery bond for about $ 7,000 in the case of B. D. Buford v. Baum & Baum? A. Yes.

"2. Did B. Negbaur make arrangements with G. H. Hulme that the goods in controversy were to be turned over to G. H. Hulme as his own property? A. Yes.

"3. Did W. W. Winstead levy executions in the cases of Bridge Beach & Co. v. Baum & Baum, and Sligo Iron Store v Baum & Baum, and Hibbard & Spencer v. Baum & Baum? A. Yes.

"4. Did Winstead know at the time he levied the executions on the goods in this case, that Hulme claimed to own the goods? A. Yes.

"5. Did the sheriff levy on all the goods in controversy under the direction of the agents of the creditors of Baum & Baum? A. Yes.

"6. Did Hulme & Negbaur, under the agreement between Baum & Baum, have the possession of all the goods named in the invoice, after its execution between them and Baum & Baum? A. Yes.

"7. What was the value of the goods replevied in this case? A. $ 270.

"8. What amount of damages did G. H. Hulme sustain by reason of the unlawful seizure of the goods in this case by the sheriff? A. $ 190."

The defendant filed his motion for a new trial, which was overruled; and thereupon the court rendered judgment upon the verdict of the jury that the plaintiff recover from the defendant the possession of the goods and merchandise described in plaintiff's petition, of the value of $ 270, and the sum of $ 190, his damages sustained, and also that he recover all costs.

Hulme claimed to be the absolute owner of a small portion of the property, but the greater portion he claimed possession of by virtue of the following written instrument:

"Whereas the firm of Baum & Baum, hardware merchants of Great Bend, Kansas, did, on the 2d day of July, 1879, under the fraudulent representations of the agent of one B. D. Buford & Co., of Illinois, execute and deliver to the said agent a chattel mortgage in favor of the said B. D. Buford & Co., for the sum of nineteen hundred dollars on their entire stock of merchandise, due November 1, 1879; and whereas, it appears that said mortgage was wrongfully and fraudulently obtained from said Baum & Baum, and for the purpose and with the intent to close up, injure and destroy the business of said firm; and whereas, said B. D. Buford & Co. did, on the 17th day of July, 1879, in violation of their agreement with said Baum & Baum, obtain from the clerk of the district court of Barton county, Kansas, an order of delivery against said Baum & Baum for all and singular the goods, wares and merchandise of the said Baum & Baum, in Barton county, Kansas, in and about their store in Great Bend, as named in said chattel mortgage, and including the tools of said Moses Baum; and whereas, the sheriff of Barton county did take possession of all and singular the goods, wares and merchandise of said Baum & Baum; and whereas, the said B. D. Buford & Co. in their affidavit did state and allege that all of said property was of the aggregate value of three thousand six hundred and two and 5/100 dollars; and whereas, the law in such cases made and provided requires the plaintiff to execute a bond in double the value of the goods or property as stated in said affidavit of said plaintiff; and whereas, said Baum & Baum were required in said cause of B. D. Buford & Co. v. Baum & Baum to give a redelivery bond in the sum of seven thousand five hundred dollars, conditioned that the said property or its appraised value in money should be forthcoming to answer the judgment of the court in such cause of B. D. Buford & Co. v. Baum & Baum; and whereas, G. H. Hulme and B. Negbaur did sign and execute and deliver to the sheriff of Barton county, Kansas, a redelivery bond in the sum of seven thousand five hundred dollars, conditioned as provided by law in cases of redelivery, under the laws of Kansas; and whereas, the said Baum & Baum desire to secure the said G. H. Hulme and B. Negbaur from any loss by reason of making, executing and delivering to said sheriff in said cause of B. D. Buford & Co. v. Baum & Baum, said bond of seven thousand five hundred dollars for the redelivery of said goods; and whereas, the said Baum & Baum desire that said goods and merchandise shall be disposed of in such a manner that will save the largest amount possible to pay the outstanding indebtedness of said firm, and for the purpose of saving the said G. H. Hulme and B. Negbaur harmless and free of all expenses, damages, attorney's, fees, and costs of all kinds whatsoever, arising out of or in any manner connected with the signing of said bond, or the sale and custody of said goods, as hereinbefore described in said suit of B. D. Buford & Co., v. Baum & Baum:

"Now therefore, for the purpose above set forth, and in consideration of the signing of the bond, as hereinbefore fully described, we do hereby assign, sell, transfer and set over to G. H. Hulme and B. Negbaur our entire stock of goods, wares, and merchandise, consisting of hardware, tinware, stoves, plows, agricultural implements, scales, tinners' tools, and all goods and personal property not exempt by law from being applied to payment of debts, in and about the business of said firm, to have and to hold, to said G. H. Hulme and B. Negbaur forever; a more complete list of the goods hereby sold and transferred is hereunto annexed, made a part hereof, marked Exhibit 'A,' to which reference is hereby made. And it is hereby expressly agreed and understood that the said G. H. Hulme and B. Negbaur are to have the exclusive possession and control of all and singular of said goods and merchandise, and may proceed to sell the same in such manner as they may deem advisable for securing the most money for said goods and merchandise; and shall have the full authority to conduct the said business of selling said property at the old stand of said firm, or at such other place as they may deem best for all concerned; that said parties shall keep a true account of all sales of goods, and of all moneys received for or on account of the sale of any of said goods; that the proceeds of the sale of any of any goods, and goods remaining unsold, shall be kept by the said G. H. Hulme and B. Negbaur until the case of B. D. Buford & Co. against Baum & Baum shall have been fully decided and determined and fully settled and adjusted, and until all costs, expenses, attorney's fees, damages and trouble of said G. H. Hulme and B. Negbaur are paid and fully settled. Now if the said Baum & Baum shall hold the said G....