141 Iowa 681 | Iowa | 1908
The action is a creditor’s bill, or rather an equitable levy upon a drug stock in the town of Belmond to subject the same to the payment of a judgment held by plaintiff against defendant Herman L. Schultz. It appears from the testimony that defendant, Herman L, Schultz, acquired a one-half interest in a certain drug stock and business in the town of Belmond some time in the year 1904. At that time the stock was invoiced at something like $7,800. In December of the year 1905-this defendant purchased the half interest owned by his partner Kenefick, and thenceforth, and until September 28, 1906, conducted the business in his own name. Some time in May, 1906, plaintiff applied to defendant Herman Schultz for some spirits of camphor, and by mistake this defendant- gave her carbolic acid instead. Not knowing of the error, plaintiff used the acid with disastrous results. She commenced suit for damages early in September of the year 1906, but defendant Herman Schultz was made aware of her injuries shortly after they were received. Judgment was rendered in plaintiff’s favor for the sum of $1,500 on December 20, 1906. Herman L. Schultz is a son of H. C. Schultz, and it appears that the father furnished most of the money for the purchase of the drug stock, taking the son’s notes therefor, one for $3,895, dated September 21, 1904, which it is claimed was paid by other notes dated August 20, 1906, one for $1,000, one for $900, and another for $3,000. These latter notes were secured by a chattel mortgage upon the drug stock and business under date August 20, 1906. The last-mentioned notes matured November 1, 1906, May 1, 1909, and January 1, 1908. The chattel mortgage was duly recorded. Afterward, and on Sept. 28, 1908, defendants, father and son, entered into a written agreement by the terms -of which Herman L. sold and transferred the business and
In consideration of a sale and transfer of the stock of drugs and the drug business at Belmond, Iowa, by II. L. Schultz to II. O. Schultz in virtue and in satisfaction of a chattel mortgage thereon executed by the said II. L. Schultz to the said II. C. Schultz, it is agreed by the parties hereto, that the said II. L. Schultz shall clerk for and manage said drug stock business at Belmond, Iowa, for and on behalf of the said II. C. Schultz and in his name and buy stock when instructed to do so, to replenish said stock of drugs, and account to said II. C. Schultz for any and all sales made and moneys received, and render an accurate account of such business to said II. C. Schultz showing the aggregate receipts and disbursements, at the end of every quarter — three months period — or monthly when required, lie shall conduct the said business carefully and avoid any liability to the said II. C. Schultz for or on account of the conduct of said business, which he hereby agrees to indemnify him against. The said II. L. Schultz may, with the consent of the said II. O. Schultz, employ a competent clerk to aid him in the conduct of said business whose salary or compensation shall be paid from the receipts of said business. It is further agreed -between the parties hereto that the said II. L. Schultz shall receive as compensation for his services as proprietory manager of said business one-third of the net proceeds after deducting all expenses and liabilities thereof, to be paid to him at the period of accounting to the said II. C. Schultz, as required herein.
It was never recorded and no actual physical change was made in the possession of the goods at any time thereafter. From the time the agreement was made the business was conducted in the name of II. C. Schultz & Co-., Herman L. Schultz being, as he said, the company. It is claimed by defendant that the business was so conducted in order to save a permit issued to Herman L. There was, as we have said, no actual or visible change made in the possession
It appears that since January 1, 1907, defendant Herman Schultz has drawn out of the business something like $556, and that since the making of the contract of sale H. C. Schultz has drawn out $1,088. The trial court held the mortgage to H. C. ■ Schultz valid, but decreed the sale fraudulent and void. It also made an accounting of the. amount due on the mortgage indebtedness, finding it to be $3,391.28, with 6 per cent, interest from May 1, 1907, declared this to be a first lien upon the goods, established a second lien on the goods in plaintiff’s favor to the amount of her judgment with interest, appointed a receiver, and directed a sale of the goods to pay these liens. Plaintiff did not appeal; but defendants did, and are here challenging the correctness of the decree in so far as it is adverse to them. In view of this record we can not do more for plaintiff than affirm the judgment. Defendants’ appeal, however, presents for our consideration several propositions which we shall consider in the order in which they are discussed in counsel’s brief.
We have gone over the record with care, and discover no error. The decree is therefore affirmed.