Kaufman v. Simon & Co.

80 Miss. 189 | Miss. | 1902

Catjioon’ J.,

delivered the opinion of the court.

We think the court erred in giving a peremptory instruction for the plaintiffs below. It' is agreed in writing that the appellees recovered a judgment against W. Shaphran on May 8, 1901, and that on trial of the claimant’s issue on the claim of property by appellant, Kaufman, the plaintiffs, who were judgment creditors of W. Shaphran, offered in evidence an “assignment, or what purports to be an assignment, executed by W. Shaphran to E. I'rankel, dated the 22d day of April, 1901, signed ‘W. Shaphran, per B. S., Agt.’ ” It is further agreed that this was a general assignment, and that the assignee filed no petition in chancery, gave no bond, and filed no schedules, as required by chapter 8, code 1892. It is further admitted that the goods described in this assignment “were delivered by W. Shaphran to E. Erankel, who took possession of the same under Exhibit'A [which is the assignment], and that he sold and delivered the same to Joseph Kaufman, the claimant in this case, who took possession of the same, and was in possession prior to the issuance of any attachment in this case.” The case was commenced by attachment, but the grounds of attachment do not appear in this record. It may be said here that there is no intimation of fraud anywhere in this record on the part of W. Shaphran, the grantor ■ in the assignment, or E. Erankel, the assignee, or Joseph Kaufman, the .claimant, to whom Erankel conveyed and delivered .the property assigned. It is established, without contradiction, that Kaufman paid the assignee a fair price for the goods, and bought in good faith, and remained in possession undisturbed for about sixteen days, and that the assignee under this general assignment, without preferences made proper pro rata distribution to every creditor, and among them to TI. D. Simon & Co., the appellees. TI. I). Simon & Co. cashed the draft sent them by the assignee, kept the money a few days, reconsidered, and mailed to Erankel, the assignee, their own draft for the money. All these facts are undisputed. Erankel, as a witness, testified that before he sold to Kaufman he had written to all the creditors for permission to make, this sale, to save expense and delay, and that all of them, including appellees, had answered, agreeing that he should make it; but as he had this letter from II. D. Simon & Co., and did not produce it, the court, very properly, on plaintiffs’ motion, excluded his testimony as to their letter of agreement.

There appears no objection in the court below to the assignment as evidence. It is now here suggested that it is not competent evidence, because of the signature to it, “W. Shaphran, per B. S., Agt.;” the authority of “B. S., Agt.,” not being shown. This might prevail but for the agreement that the goods “were delivered by W. Shaphran to E. Erankel, who took possession, of the same under Exhibit A.” With this agreement in, we cannot consider the objection on this point.

The real contention.is that the assignment, and sale under it by the assignee, were absolutely void, because the assignee did not conform to the directions of code 1892, § 117. This might avail if the attachment had intervened between the execution of the assignment and the sale and delivery of the possession of the goods by the assignee to Kaufman. But the attachment was not interposed until two weeks or more thereafter. Shaphran, in good faith, conveyed the property to Erankel for the benefit of his creditors, without preference, and put him in possession; and he, in good faith, sold and delivered the possession of them to Kaufman, who bought and took possession for a fair price in good faith. This is enough. Baldwin v. Flash, 58 Miss., 593. Appellees can derive no comfort from Code, § 124, which declares a general assignment, where certain schedules are not filed, “void as to all preferences contained in it.” This assignment contains no preferences, and the argument would be that it is therefore not void, and that, if such had been the intent in §117, the legislature would have said so.

Reversed and remanded..