72 Tex. 60 | Tex. | 1888
This suit was brought by appellee, H. L. Wyatt, against W. C. Jones, to recover an alleged indebtedness evidenced by five promissory notes. An attachment was sued out at the time the suit was instituted, and was levied upon a stock of goods, which were subsequently sold, and the proceeds were thereafter paid into court. There is no statement of facts in the record, but the facts appear in the findings of the court, which are adopted by appellant as a statement of the case. The findings are as follows:
1. In February, 1886, H. L. Wyatt and W. C. Jones plaintiff and defendant) formed a partnership to carry on a grocery business under the firm name of Wyatt & Jones. H. L. Wyatt put in the business §1000 capital and Jones nothing. They were equal partners.
2. On the 23d day of July, 1886, said firm, by mutual consent, was dissolved, H. L. Wyatt retiring, and W. O. Jones continued the business under the style of W. C. Jones & Co.
3. At the time of the dissolution said firm of Wyatt & Jones owed about §3000 outstanding indebtedness. There was due said firm accounts to the amount of about $1750.
4. The consideration of the first two notes mentioned in plaintiff's petition, to-wit, $300 and $360, were for money loaned W. C. Jones by H. L. Wyatt; the consideration for the other notes sued upon are as follows: Wyatt & Jones agreed that Jones should take the stock of goods and all notes and accounts due the firm of Wyatt & Jones a,nd assume all outstanding indebtedness of the firm, and to secure Wyatt against the creditors whose debts were assumed by Jones, as well as to evidence the consideration for Wyatt’s interest in the stock of goods and accounts due the firm, the notes were given. It was agreed that if Jones paid the in*62 debtedness of the firm, to the amount so paid he should be entitled to a credit on said notes.
5. At the time of the institution of this suit neither Jones nor Wyatt had paid any of the indebtedness of Wyatt & Jones; but during the month’s of October and November, 1886, Wyatt paid off said indebtedness to the amount of $4412.
6. That plaintiff, H. L. Wyatt, on the 28th day of September, 1886, levied his writ of attachment on the stock of goods of W. C. Jones for the full amount of his said notes, to-wit, $4307.50; that on the 30th day of September, 1886, intervener, Jos. H. Brown, levied a second attachment on said goods for the sum of $650.86.
7. The said goods were sold on the 16th October, 1886, by order of court, obtained by H. L. Wyatt, and brought the sum of $3051.50, which said sum of money, less the cost of sale, was duly returned into court.
8. That by agreement of all parties, at the March Term of the court H. L. Wyatt drew out all said money except the sum of $750, which remained in court to await the result of the suit.
9. That in the District Court of Ellis County, Jos. H. Brown, on the 12th day of March, 1887, in his attachment suit against W. C. Jones, obtained a judgment for $650.09, and costs amounting to $6.05, with eight per cent interest thereon, with foreclosure of attachment lien, etc., subject to this suit.
10. That in the justice court of Ellis County, Jos. H. Brown, on the 31st day of July, 1887, obtained a judgment against Wyatt & Jones for $77.91 with interest at eight per cent.
11. That in the County Court of Galveston County, intervenors, Focke, Wilkins & Lange, on the 21st October, 1887, recovered a judgment against Wyatt & Jones for the sum of $594.50 with interest at ten per cent thereon.
12. That in the County Court of Ellis County, intervenors, Greely Bernhein Grocery Co., on the 20th day of January, 1888, recovered a judgment against Wyatt & Jones for the sum of $237.55 with interest at eight per cent thereon.
13. That plaintiff and defendant admitted that intervenors, as creditors of Wyatt & Jones, were entitled to the proceeds of sale of goods attached.
Upon the facts so found the court gave judgment that appellant take nothing by his plea of intervention, and distributed the mbney in court among the other parties. Brown alone appeals.
It is not here claimed that there was any fraud in the case. But it is contended, on behalf of appellant, that the three notes given by Jones to Wyatt at the time he sold the goods were not at the tim.e the attachment was sued out such a subsisting indebtedness as would authorize the writ. In order to procure an attachment in this State the plaintiff must in every case make oath that the defendant. is justly indebted to him in the sum
Wo see no sufficient reason for doubting that all these notes were debts in the sense that that word is used in our attachment laws, and therefore the judgment Avill be affirmed.
Affirmed.
Opinion November 30, 1888.