69 Tex. 161 | Tex. | 1887
This was a proceeding for a trial of .the right of property in a lot of wagons seized under an attachment sued out by the appellees against Z. J. Anderson and claimed by the appellant. The case was tried by the judge and judgment rendered subjecting the property to the plaintiff’s attachment, and from that judgment this appeal is taken. The •judge below placed in the record his conclusions of law and fact, and it is to these, that the assignments of error are directed. The judge’s conclusion of law was that the transfer of the property by Anderson to the appellant was fraudulent and void, and that the property was subject to the several writs of attachment levied thereon. Whether this conclusion is correct or not depends upon whether the evidence was sufficient to sustain the findings of fact, for these inevitably lead to the conclusion of law-found by the judge.
It seems that on or before the twenty-first of June, 1884, Anderson was engaged at the city of Fort Worth in the business of dealing in wagons and agricultural implements upon his own account. On that day he sold to the La Belle wagon works his entire stock of La Belle wagons and extras (including such things as tongues, seats, brakes, etc.,) the consideration of the sale being the return to him of four notes made by him to the La Belle wagon works falling due from the first to the twenty-first of July, 1882. A memorandum made part of this bill of sale makes the notes aggregate with interest the sum of two thousand ninety-nine dollars and ninty cents, and the property conveyed to be worth in round numbers about three thousand and one hundred dollars. Anderson, after the trade was consummated still owed the appellant other notes maturing in August and October, 1882, and aggregating three thousand two hundred and eighty-five dollars and fifty cents. The property conveyed, had been bought by Anderson from the appellant, and in making the conveyance the price fixed for the property, was the same which had been given for it by Anderson, which was forty per cent loss then its invoice price. Anderson having paid the freight from Fond du Lac, Wisconsin, where the appellant did business, to
The court’s finding was that at the time of this transaction Anderson was largely indebted and insolvent, and unable to meet-demands then due and to become due shortly thereafter, and that appellant’s agent was fully informed of- such facts. That the transfer was made for the purpose of hindering and delaying the creditors of Anderson, by placing said property out of their reach, and reserving to himself an interest therein to the extent of the forty per cent and the freight paid by him, and that this purpose-was known to the appellant. That the property transferred greatly exceeded in value the indebtedness to be cancelled under-the agreement; that none of such indebtedness had been can-celled, but that the notes specified in the writing, together with the collaterals, were still held by the appellant. The judge-found Anderson’s indebtedness to be about forty-one thousand dollars, and his property to amount to twenty-five thousand .dollars, besides notes and accounts. The finding of the court as to-the indebtedness and insolvency of Anderson, and the knowledge of the insolvency by appellant’s agent, is fully borne out by the evidence. His indebtedness was shown to be over forty-one thousand dollars; and, whilst he claimed to have had goods on hand to the amount of forty thousand dollars, a part of them, he stated, were held on commission, but how much, he did not say. The sheriff testified that the goods were worth no more than nineteen thousand dollars. His real estate, exclusive of his homestead, was not worth enough to bring the goods, at this valuation, up to twenty-five thousand dollars. The value of the-notes and accounts was not shown.
This state of assets and liabilities, taken in connection with the fact that Anderson himself was apprehensive that he could not meet his paper so soon to mature, and that he was willing to return to each of his creditors the goods bought from him, as a
Whether the court below was justified in concluding as matter of law that the conveyance to the appellant was void as to the appellees, depends upon whether the findings as to some other facts were warranted by the evidence. The appellant was authorized to take goods in payment of his debt, though it thereby hindered and delayed other creditors, provided the amount taken was in value reasonably proportioned to the debt extinguished, and his debtor reserved to himself no benefit in the goods after they were thus conveyed. The court below found that the property taken far exceeded in value the indebtedness to be cancelled, and that Anderson reserved to himself an interest therein to the extent of the forty per cent commissions he was to receive and the freight paid by him on the goods. The goods were taken at the price given for them in Fond du Lac, Wisconsin, where they were bought from the wagon works. Their invoice price was nominally higher, but forty per cent was always deducted in sales to customers, so that the price at which the goods were taken, was their real value in Fond du Lac, and, freight being added, the price that the appellant would have been willing to sell and deliver them at Fort Worth. The price there at which they took the property was what it was worth to them at Fort Worth, less the freight paid to deliver it there. It has not been held that property taken in payment of a debt must be exactly the same in amount as the debt paid. with it, but it must not be more than is reasonably necessary to discharge the indebtedness. (Greenleve v. Blum, 59 Texas, 124.)
The appellant was not required to take the property at its retail or at its wholesale price in Fort Worth; for to sell it in either would require that ex.....e should be incurred, to come
For does it satisfactorily appear that Anderson reserved to-himself any interest in the goods. The forty per cent commission was mot such interest. It did not vest immediately upon the-consummation of the trade, nor was it entirely to vest in the future. It was to be earned by future services rendered in making sale of them. If they were not sold he received no commissions; and by the very terms of the instrument the appellant, could have taken the goods away from Anderson the next day of the trade without paying or owing him one cent as commission.
As to the freight there is some ambiquity in the contract between Anderson and appellant. Anderson was bound to deliver the goods to appellant or its agent, at any time when so ordered, making no charge against them except for actual freight or drayage. Whether this means the freight and drayage accruing in bringing the goods originally to Fort Worth, or in delivering them to the appellant in case it concluded to resume possession, is uncertain. If the latter, there was clearly no resumption of interest in Anderson, for he would but be receiving back something that he had paid out for the benefit of the property after it passed into the ownership, of the wagon works.
Anderson testified that the money paid by him for freight on.
For the errors pointed out the judgment will be reversed. As it is apparent that all the important facts bearing upon the points at issue were not developed upon the former trial, the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered November 18, 1887.