97 Mo. 145 | Mo. | 1888
This is a controversy between the plaintiff, who is an individual creditor of O. H. Brenneisen, who is named the respondent, and certain creditor? of Brenneisen & Goff, a firm of which the said C. II. was a member.
The plaintiff, on the fifth of February, 1885, in an action commenced by him in the circuit court of Henry county against C. H. Brenneisen, sued out a writ of attachment and caused the same on that day to be levied on a stock of goods then in possession of said Brenneisen, in McBeth’s building, in the city of Clinton, in said county. Subsequently, a number of the creditors of Brenneisen & Goff, some on the same day, some on the next, and some several days thereafter, in actions commenced in the same court, severally sued out writs of attachment and caused them to be levied upon the same goods, as the property of said firm. Afterward, on the petition of the plaintiff and the other attaching creditors, a receiver was appointed, the goods sold, the proceeds received and held by the receiver subject to the order of the court. In the meantime, all the attaching creditors obtained final judgment in their several actions, whereupon the plaintiff filed its motion in said court praying for an order directing the receiver to pay plaintiff out of the proceeds of the sale of said attached property the amount of his judgment, interest and costs as a prior attaching creditor, and at the same time, the attaching creditors of the partnership firm of Brenneisen & Goff filed their motion, claiming that the property seized and sold was the property of said firm and subject to the payment of the partnership debts, to the exclusion of the individual debts of the members of the firm, and praying for an order restraining the receiver
The evidence tended to show that prior to February, 1884, Brenneisen & Goff were doing business in partnership ; that about that time they dissolved, Goff selling out to Brenrieisen ; that thereafter, until the following December, they each conducted business on their own individual account; that in July, 1884, Brenneisen contracted the debt to plaintiff for which it sued out its attachment and for which it obtained judgment for $2,621.10; that at the time this debt was contracted, Brenneisen’s stock of goods was of the value of about $8,000 ; that in December, 1884, Brenneisen and Goff again went into partnership under the firm name of Brenneisen & Goff, each putting into the concern his stock of goods; the value of Goff’s stock putin does not appear. The goods were intermingled and they commenced doing business together under the firm name, and during the following month, purchased largely new goods for which they contracted the debts due to the attaching creditors of the firm, and for which their several judgments were obtained. About the tenth of January, 1885, they started a branch store at Brownington, to which the stock that Goff put in was transferred. The new goods bought were some retained at the Clinton store, in the McBeth building, some sent to
The power of the circuit court, on the motion of the plaintiff, and all the other attaching creditors, both individual and partnership, of Brenneisen & Goff, to fix the priorities and distribute the fund in custodia legis, arising from the sale, at the instance of all the parties, of the same property upon which they had all caused their attachments to be levied, in the hands of the receiver of the court appointed upon their application for that purpose, is, we think, too plain for argument. R. S. 1879, secs. 427, 430, 439.
There can be no question that the goods in the McBeth building in Clinton, upon which the attachments were levied, were at the time the partnership property of the firm of Brenneisen & Goff. Some of them were the old goods of Brenneisen which he had transferred to the firm when the last partnership was formed, the rest goods that had been purchased by the firm afterwards, but if they had consisted exclusively of goods of the old stock, the plaintiff would have been in no better situation. It had no lien on that stock, the title to it passed to the firm, when the partnership was formed, and it became a part of the capital stock of the firm, and there is no evidence that afterwards Brenneisen became the owner of it in any way as his individual property. It is true that one witness, who had been clerking for the firm, testifies that about ten days before the attachments were levied, the partnership was dissolved, but he seems to have been the only person in the world that ever knew it, the partners never spoke of it, nor was any notice of such dissolution ever given. The goods purchased by the firm continued to be received, and mingled with the
The judgment is affirmed.
