95 Tenn. 262 | Tenn. | 1896
This suit was brought by B. Low-enstein & Bros, to recover the value of a certain stock of merchandise alleged to have been wrongfully seized as the property of one J. C. Long, under an attachment sued out by Brooks, Neely & Co. in the Circuit Court of the United States for the Eastern District of Mississippi. The defendants, Brooks, Neely & Co. pleaded the general issue. There was a trial in the Circuit Court of Shelby County, before Judge L. H. Estes and a jury, resulting in a judgment in favor of plaintiffs for the sum of two thousand dollars. Brooks, Neely & Co. appealed, and have assigned errors. There was evidence on the trial below tending to show that, about November, 1889, one J. C. Long was engaged in a general merchandise business in the State of Mississippi, with one store at Marietta, in Prentiss County, and another at Walker’s Hall, in Itawamba County. Long was largely indebted to various creditors, and, among others, to the plaintiffs, B. Lowenstein & Bro., and to the defendants, Brooks, Neely & Co. It further appears that, on November 23, 1889, B. Lowenstein & Bro., Robson, Block & Co., J. M. G-oodbar & Co., Des Jardines, Miller & Co., and Mack Stadler &. Co. ■sued out attachments in the State Courts of Mississippi against the property of the said J. C. Long, and these attachments were levied on the stock of
It appears that all the parties interested signed the agreement and consented to the sale. Two of the attaching creditors — Goodbar & Co. and B. Lowen-stein & Bros.. — entered into a further agreement, by the terms of which they were to purchase both stocks at the sale and pay off the claims of prior attaching creditors. The purchase, under this agreement, was to be made in the name of B. Lowenstein & Bros., who were to discharge such priorities, and, as the goods were afterwards sold, to prorate the net proceeds on the several debts which Long owed them. It appears that J. C. Long, the debtor,, made no defense to the attachment suits, but consented to the sale of the goods, and to the application of the proceeds to the payment of the claims of the prior attaching creditors. At the Sheriff’s sale, B. Lowen-stein & Bros, not only purchased the goods, but likewise the book accounts due Long. There is proof tending to show that Lowenstein & Bros, left the stock in the hands of one Anthony, as their agent, to sell the goods at private sale, and that J. C. Long, the debtor, was employed by them to collect the accounts remaining due on his books. It appears that Anthony remained in charge of the stock from De
The portion of the charge objected to is, viz.: ‘c Evidence has been introduced of oral statements alleged to have been made by J. C. Long in regard- to goods being moved out of his store on the
We are of opinion this charge is erroneous, and hold that the declarations of Long, while in possession of the stock of goods, to the effect that all, or a portion of them, belonged to him, were competent as part of the ven gextm of the possession, and as tending to show title in him. “Declarations of
Error is also assigned upon the following charge, to wit: “On the other hand, if the goods which it is claimed Long intermingled with those purchased l>y B. Lowenstein & Bros., were not of equal, but wore of less value than those of Lowenstein, and could not be identified or distinguished from them, then the Marshal had no right to seize any of the goods, and, under such circumstances, the levy by the Marshal would make the defendants liable for the seizure, for the value of the good to the plaintiffs, if they were sold or lost to them, if the defendants participated in the act of the Marshal by giving him an indemnity bond, either at the time of the levy or subsequent thereto, before the sale of the goods by the Marshal.”
We are of opinion this instruction was erroneous, in that the loss of the goods, resulting from indistinguishable intermingling; is made to depend upon the comparative value of the portions belonging to the respective owners, instead of enforcing the forfeiture against the one who was responsible for the
The law governing the confusion of goods, however, could have no place in this case, unless it affirmatively appeared that the intermingling was done with the fraudulent collusion of B. Lowenstein & Bros., and we find in this record no anchorage for such a contention. The fact that Long, while acting as agent for Lowenstein, intermingled his own goods with the stock of Lowenstein, would not bind the latter, for it would be an act beyond the scope
For the errors indicated, the judgment is reversed, and the cause remanded.