41 Fla. 138 | Fla. | 1899
John E. Muller began merchandising in the city of Pensacola in March, 1893. On the xoth day of that month he purchased from plaintiffs in error various items of merchandise on credit. In the early part of October, 1893, he executed a general .assignment for the benefit of creditors, excepting therefrom and reserving as his exemption $i,opo worth of personal property, of which about $600 consisted in articles purchased from plaintiffs in error on March 10, 1893. This exempt property never went into the hands of the assignee but was by Muller turned over tO' defendant in error, for what purpose is immaterial to the only question presented in this court. On October 6, 1893, plaintiffs in error sued Muller in the Circuit Court of Escambia county to recover the purchase price of the goods sold him on March 10, 1893, and a writ of garnishment was issued to defendant in error. Judgment was recovered in the principal suit, and the issues involved in the garnishment were submitted to a jury who found for the garnishee, in whose favor judgment was entered, from which this writ of error was taken.
Upon the trial of the garnishment the court instructed the jury, “If you find from the evidence that the goods in the hands of the garnishee had been included in his exemptions by the defendant, Muller, duly and legally set apart, in making a general assignment, then they are exempt from garnishment whether the debt now sued for was for the purchase price thereof or not, and you will find for the garnishee.” The only error assigned for consideration by this court is the giving of this instruction.
After the case was submitted on brief in this court
I. In support of the motion to dismiss, defendant in error argues that by filing their claim with, and accepting a dividend from, Muller’s assignee, plaintiffs in error thereby accepted a benefit from, and ratified and confirmed every clause in, the assignment; that they will not be permitted to accept a benefit from the assignment and at the same time repudiate a reservation to Muller secured by the same instrument. In support of this contention we are referred to authorities which hold that creditors who file claims or accept dividends under a voluntary assignment thereby elect to accept its provisions and will be held to acquiesce in its validity, and in the disposition of the proceeds arising under it, according to its terms; that a creditor will not be permitted to accept a benefit from, and at the same time repudiate any provision in, a voluntary assignment. But these authorities do not cover the question here involved. The contest here is not over property included in, but over property expressly excluded from, the terms of the instrument under which a dividend was paid to plaintiffs in error. This contest began before plaintiffs in error accepted any benefit from the assignment. The assignment did not purport to convey the property now sought to be subjected by the garnishment. Under our
II. From what has been said, it is apparent that the instruction given by the court above quoted was erroneous. The constitution expressly provides that "no property shall be exempt from sale * * * for the payment of obligations contracted for the purchase of said property.” If the debt due plaintiffs in error was an obligation contracted for the purchase of property in the hands of the garnishee, the property was not exempt from a garnishment issued in aid of the collection of that debt, unless the creditors had waived their right to subject it. If the creditors by accepting a dividend under the assignment did not waive their right to proceed
The motion to dismiss is denied; the judgment of court below is reversed, and a new trial granted.