44 W. Va. 75 | W. Va. | 1897
On writ of error to a judgment of the circuit court of , Kanawha county, entered on the 10th day of January,''' 1895, in case of interpleader to try the right to property / attached. On the 15th day of May, 1892, and prior thereto, Egbert and Sears, composing the firm of Egbert & Co., at Brownstown, W. Va., were engaged in buying and sell-, ing Hour, and feed, eic., buying their flour from the Dresden Milling Company, a firm composed of Jacob Walters, William Snyder, and the same Fred H. F. Egbert, and doing a milling business at Dresden, Ohio, Egbert owning/ a half interest therein. On the 15th day of May, 1892, plaintiff, Grogan, purchased of Egbert & Co. one hundred and thirty-three barrels of flour, for which Grogan paid in hand, by his negotiable note, the sum of five hundred and forty-four dollars and twenty cents; and this flour turned out to be musty and unmerchantable. The firm of Egbert & Co. was dissolved on the 15th day of May, 1892, and never afterwards sold flour anywhere. On the 16th day of May, 1892, on the petition of the partner Egbert, owning one-half, and by the consent of the other two members of the firm, the court of common pleas of Muskingum county, state of Ohio, appointed F. W. Gasche, the plaintiff in this interpleader, the receiver for the Dresden Milling Company, whose assets consisted of a mill, grain, flour, feed, eic., with directions to collect the debts of the firm, operate the flouring mill, and make such purchases of grain as might be necessary to carry on the business, but without incurring- any indebtedness. On or about the 15th . day of August, 1892, this receiver, through his agent, Eg-bert, sold one hundred and twenty-five barrels of flour to De Gruyter, Fuller & Co., of Charleston, manufactured at the Dresden Mill, by the receiver, under the order of the Ohio court. The price of the flour sold was four hundred
On the 29th day of March, 1894, F. W. Gasche, as receiver, filed his petition, disputing the validity of plaintiff’s garnishment, stating his claim to the debt due from the De Gruyter-Fuller Company as receiver, and the nature of his claim, and gave security for costs, as required by law; and on the 21st day of December, 1894, the court impaneled a jury to inquire into the receiver’s claim, and try whether or not this debt due from the De Gruyter-Fuller Company was the property of F. W. Gasche, receiver, as claimed in his petition at the time the same was levied on. Duringthe prog-ress of the trial of this issue, the receiver, Gasche, introduced in evidence, over the objection of plaintiff, Grogan, the record of the proceedings of the court of common pleas of Muskingum county, Ohio. This transcript was duly certified, and was certainly admissible and relevant, as showing the fact and time of his appointment, and the extent of the authority thereby conferred upon him.
In this case the receiver must be regarded as repre
There is also a serious doubt as to whether the debt on which plaintiff’s suit is founded is not, in fact, a just liability against the Dresden Milling- Company, although ostensibly against the firm' of Egbert & Co. Egbert & Co. were engaged in selling flour for the Dresden Milling Company, Egbert being a partner in both companies, and acting as salesman for both and the receiver. As shown by the record, on the 15th May, 1892, the sale of flour which gave rise to the liability was made to plaintiff by Egbert & Co., as they claim, as purchasers from the Dresden Milling Company. The same day the partnership of Egbert & Co. was dissolved, and the next day, the Dresden Mill
The court would not permit the plaintiff to prove, in defense of the receiver’s claim, that the proceeds of the flour went to swell the assets of the Dresden Milling Company, nor to prove, by the record and otherwise, the-character of the plaintiff’s claim, as tending to show a primary liability against the Dresden Milling Company, and that the alleged firm of Egbert & Co. were merely agents in the transaction for the Dresden Milling Company, for the purpose of rebutting the right of the receiver to take the fund. In this the court also errred; for, as heretofore shown, a foreign receiver can not assert title to property within this State as against the attachment of a resident creditor. He simply represents the debtor whose title is subject to attachment. Runk v. St. John, 29 Barb. 585. Not only this, but the evidence tended to show that the receivership was a mere cover to enable Egbert to handle and dispose of his own property in such manner as to
For these errors, the judgment is reversed, the verdict of the jury set aside, and a new trial awarded.
Reversed.