130 Iowa 710 | Iowa | 1906
Save for a ruling upon a motion to strike an amendment to the petition, filed after thé evidence had been taken and after the arguments had been made, but before the decision of the trial court, there is no need of re,ferring to the pleadings at length. Suffice it to say that in the original petition it was charged that Gotzian & Co. received from defendant Mayhew a certain stock of goods owned by him, in satisfaction of a claim held by it against him, and upon the further consideration that it would pay his outstanding indebtedness; that plaintiff was at that time one of Mayhew’s creditors to the extent of $390; and that Gotzian & Co., although receiving the goods and their proceeds, failed to pay plaintiff’s claim.
After the case had been argued, but before final submission, plaintiff amended its petition, ostensibly to meet the evidence in the case, in which it alleged that the agreement between Mayhew and Gotzian & Co. was that his (Mayhew’s) creditors should either be paid in full, or that Gotzian & Co. undertook to pay these creditors their pro rata share out of the property received by them; that as a matter of fact Gotzian & Co. had paid all other creditors, save plaintiff, fifty cents on the dollar for their claims; and
The evidence shows that Mayhew was engaged in the retail boot and shoe business in the city of Sioux City during the years 1902 and 1903. Gotzian & Co. was in the year 1903, and for many years prior thereto, engaged in the wholesale boot and shoe business at St. Paul, Minn. May-hew had been an employe of this firm for many years, and when he concluded to engage in business for himself he solicited Gotzian & Co. to.give him a line of credit — credit to the amount of $2,500. This the firm promised to do, and at the same time it took a mortgage upon some Dakota land from Mayhew for the sum of $1,600. Mayhew commenced his business in the year 1902, and by the last of August of the year 1903 he had become indebted to Gotzian & Co. to an amount exceeding $6,900. He owed other creditors at this time, including plaintiff, something like $1,500. Discovering Mayhew’s condition, Gotzian & Co. went to him and induced him to make it a bill of sale covering his entire stock, furniture, and fixtures; also all accounts and books of account pertaining to the business. This bill of sale was made on August 31, 1903, and was recorded the next day. Gotzian & Co. immediately took possession under its bill of sale, and proceeded to close out the stock of goods, and to collect the accounts. Mayhew had just purchased a bill of goods from plaintiff, part of which had been returned; but he testified without contradiction that about $390 worth of plaintiff’s goods were covered by the bill of sale. Mayhew said on the. witness stand that as a consideration for the bill of sale Gotzian & Co. agreed to pay all outside creditors and release all his indebtedness to them. This is denied by some of defendant’s witnesses;
The only point in serious dispute on the facts is the nature of the promise made to Mayhew with reference to plaintiff’s claim. Mayhew says it was to pay it and all other outside creditors in full, or at least to secure the release of all their claims, although he afterward said that the agreement was that it was to settle with his outside creditors. It is evident that, whatever the arrangement, it was the purpose to keep Mayhew from going into bankruptcy, either voluntary or involuntary. The effect of his testimony was that Gotzian & Co. was to take the goods and settle with his (Mayhew’s) other creditors, and thus keep
The judgment is right, and it is affirmed.