39 S.C. 203 | S.C. | 1893
The opinion of the court was delivered by
It appears from the pleadings and other proceedings in this case that the two first named defendants, composing the firm of Keels, Nelson & Co. at the time (another member of the firm having previously withdrawn), on the day of January, 1892, executed a deed of assignment for the benefit of their creditors to the defendant, B. B. Clarke, who, in pursuance of the statute, called the creditors together on the 8th of February, 1892, for the purpose of appointing an agent of the creditors. The only persons who attended that meeting were Marcus G. Ryttenberg, one of the members of the plaintiff firm, who represented the claim of the plaintiffs, as well as that of Frank & Adler, and the defendant, C. L. Winkler, who, as attorney at law, represented the claims of Wilbur & Son and Olaussen & Co. At that meeting the defendant, C. L. Winkler, was, on motion of said Marcus G. Ryttenberg, appointed agent. On that day, after the meeting had adjourned, the creditors thus represented, not being satisfied with the showing made, agreed not to accept the terms of the assignment, and Ryttenberg proposed to write to the other creditors so soon as he could obtain a list of them from the assignee, informing them of their agreement and advising them not to accept; but Ryttenberg, failing to obtain a list of the creditors from the assignee, did not carry out his proposition. It turned out, however, that none of the creditors accepted the terms of the assignment.
On the 16th or 17th of February, 1892, the stock of goods, constituting the principal portion of the assigned estate, was sold by the assignee and agent, and the proceeds deposited to their joint credit in one of the Camden banks. Subsequently
The Circuit Judge in his decree (which should be incorporated in the report of this case) rendered judgment setting aside the assignment as null and void, but denied plaintiffs’ right to have the proceeds of the assigned property applied, first, to the plaintiffs’ judgment, and, on the contrary, directed that such proceeds be applied pro rata to the payment of the judgments of plaintiffs, Wilbur & Son and Claussen & Co. From this judgment plaintiffs appeal upon the following grounds, substantially: 1st. Because of error “in requiring the fund in question to be pro rated among the judgments of the plaintiffs, T. A. Wilbur & Son and J. C. H. Claussen & Co., the plaintiffs claiming the entire fund on the ground that they were the only judgment creditors who issued execution and moved to set aside the deed.” 2d. “Because neither the said Wilbur & Son nor Claussen & Co. were before the court.”
Now while this arrangement as thus stated does look very much like an agreement that the assignment should be allowed to stand, in which event the assets of the assigned estate would be pro rated amongst all the creditors, of whom there appears to have been several others besides the plaintiffs and those represented by Mr. Winkler, we see nothing in it which even intimates any understanding as to what was to be done in the event, which did occur, of setting aside the assignment. Manifestly the arrangement, did not and could not have contemplated any such event as that which actually did occur, as that would be contemplating an event not only inconsistent but entirely at variance with the manifest purpose of the arrangement. When, therefore, the attack, which proved to be successful, was commenced against the assignment, the previous arrangement was necessarily abrogated, and each party was left to pursue his' own course. Indeed, it would seem as-if both parties disregarded the arrangement, in one respect at least — for the understanding, as stated, was that the assignment was to be allowed to stand, and the assets derived therefrom to be pro rated amongst all of the creditors, and then the creditors could obtain judgment for the balance remaining unpaid by the assigned assets; and yet both the plaintiffs and the creditors represented by Mr. Winlder, before any distribution of such assets, proceeded to obtain judgments for the whole amount due them. We do not see anything in the understanding between the parties which could have the effect of estopping the plaintiffs from claiming the advantage acquired by their superior diligence.