114 Ala. 647 | Ala. | 1896
This is a creditors’ bill, filed by Henderson and others, in behalf of themselves and other creditors of W. E. Perryman & Co., against M. D. Perryman, W. E. Perryman, W. E. Perryman & Co. and the Alabama National Bank, to set aside as fraudulent a sale and transfer of certain personal property, consisting chiefly of a stock of merchandise and choses in action made by W. E. Perryman & Co. to M. D. Perryman and said bank, in alleged payment of debts alleged to be owing to said parties. The bill attacks this transaction upon the following grounds : 1st. That
We have no difficulty on the evidence in reaching the conclusion that the debts of M. L. Perryman and the bank were real and just in the amounts claimed, and purporting to have been paid by the sale and transfer of the property. The testimony of M. D. Perryman and the officers of the bank is circumstantial, direct and positive to the establishment of their respective claims item by item, and they are corroborated by the testimony of W. E. Perryman; and while much might be said against the credibility of the last named witness, that of M. D. Perryman and the bank people is in no degree impeached or brought into serious question.
There is scarcely more difficulty in finding that the sale involved no secret trust in favor of, or reservation of benefit by the seller or sellers. The parties all disclaim it and deny it, swearing that nothing was involved
A more serious question arises when we come to consider whether the - property transferred exceeded in value the aggregate of the debts purporting to be paid by the transfer. M. D. Perryman’s debt was $10,470, and that of the bank was $2,620, the aggregate being $13,090. The answers deny the averments-of the bill that the property was of materially greater value than this aggregate, and allege, to the contrary, that the goods, &c., turned over to M. D. Perryman and the bank “were not worth as much as they gave for them, and did not sell for enough to pay their respective demands.” And the evidence supports these statements. But there-was evidence going to show that the merchandise was to be taken at a certain per cent'off of cost price and that the choses in action were to be taken at their face values ; and the schedules of goods and choses in action, attached to the bill of sale, set forth
This leaves for consideration only the inquiry whether “W. E. Perryman & Co.” was a partnership, or W. E. Perryman individually doing business under a name appropriate to a partnership. That the business was carried on under the name of V. E. Perryman & Co. and that the debts of complainants were incurred and contracted in and by that name, is not questioned. The use of the words “& Co.” following the name of “W. E. Perryman,” is itself evidence that more than one person was engaged in the business, and raises a prima facie presumption of partnership, which, though weak it may be, requires some evidence to rebut, (1 Lindley on Partnership, p. 146, note; Parsons on Partnership, § 98 ; 17 Am. & Eng. Encyc. of Law, p. 912 ; B. L. & A. Co. v. Bank, 100 Ala. 249) ; and in a proper case may become the basis of an estoppel on the person using such name to deny partnership. — LeGrand v. Eufaula National Bank, 81 Ala. 123.
The evidence in the abstract before us does not, in our opinion, rebut and overturn the presumption of partnership arising from the use of a name appropiiate thereto, but, to the contrary, supports it. It is true that W. E. Perryman testifies that there was no partnership, no
It is insisted for the appellees, however, that whether Perryman & Co. was a partnership or W. E. Perryman only, is immaterial, for that in either event the transfer of property is valid because of the supposed fact that funds of M. D. Perryman, who alone occupies the position of a creditor of W.E. Perryman individually, held by W. E. Perryman in a fiduciary capacity, were converted by him into the property which was transferred to M. D. Perryman, so that such property, “in truth and in fact,” as the answer alleges, “belonged to M. D. Perry-man, and when he took the same in payment, he simply took his own property'.” Of the reasons which may exist for holding this line of defense untenable and unavailing, we need state one only : The evidence is not satisfactory to show, if indeed it even tends to show, that M. D. Perryman’s funds were converted by W. E. Perry-man into the property included in this bill of sale.
W. E. Perryman & Co. were insolvent and in failing circumstances when this transaction occurred. The sale
Affirmed in part, and reversed and remanded.