48 Neb. 544 | Neb. | 1896
Tbe Bank of Wilcox is a banking corporation created under tbe laws of tbe state and domiciled at Wilcox, Nebraska. For some years prior to 1890 Henry Wilcox was tbe easbier of said bank, and during tbe time be was sucb easbier be became indebted to it in about tbe sum of |30,000. In April, 1890, at said village of Wilcox, Henry Wilcox embarked also in tbe business of buying' and selling lumber and sucb other material as is usually kept in a country lumber yard. Tbe business was conducted and carried on under and by tbe name of tbe “Wilcox Lumber Company.” Henry Wilcox furnished all tbe money that went into tbe business and owned tbe entire property embarked in tbe venture. D. C. Shetler had the supervision of tbe lumber yard, made sales, made collections, and looked after tbe business generally; but be did not own any part of tbe property embarked in tbe business; be was not responsible for any loss that the venture might suffer, nor any of its debts; be bad no light to control or dispose of tbe property and venture, otherwise than as an ordinary retail salesman, and bis only interest in tbe property or what it might earn was that be was to have one-balf of tbe profits of tbe venture as compensation for bis time and services. On tbe 8th of April, 1891, tbe Wilcox Lumber Company, as an evidence of a debt which it owed the Bank of Wilcox for money borrowed and invested in tbe lumber business,, executed and delivered to said bank its note for $4,000, due in ninety days. On tbe 1st of January, 1892, Henry Wilcox was superseded as cashier of the' Bank of Wilcox and one Hopkins was elected cashier in bis place. The lumber and other material belonging to tbe Wilcox Lumber Company was insured against loss or damage by fire-in tbe ¿Etna Insurance Company and another. On tbe 2d of February, 1892, tbe insured property was destroyed by fire. On tbe 3d day of February, 1892, Henry Wilcox delivered to tbe Bank of Wilcox tbe policies of
1. As already stated, while Henry Wilcox was cashier •of the Bank of Wilcox he became largely indebted to the bank. This indebtedness was in addition to what he owed the bank under and by name of the Wilcox Lumber Company. On the 1st of March, 1892, he had an accounting or a settlement with the Bank of Wilcox. In this settlement an itemized statement was made of the debts which he owed the bank, and on that date he assigned to the bank, to secure the indebtedness, a large number of securities. In this statement the debt which he as the Wilcox Lumber Company OAved the bank was also recited, and among the securities pledged to the bank to secure his debt was also recited the insurance policies in controversy, which had been previously delivered and assigned to the bank, as already stated. The first argument made here is that this assignment of certain securities and property on the 1st of March, made by Henry Wilcox to the Bank of Wilcox, was fraudulent and void,
2. A second argument relied on for a reversal of the decree is that the Wilcox Lumber Company was a copart-nership, composed of Henry Wilcox and D. C. Shetler; that the debts of the appellants are copartnership debts; that the fund in court arising from the insurance policies is a copartnership fund, and that the debt owing to the bank by Wilcox was the individual debt of Henry Wilcox; and that, therefore, the appellants are entitled to have the fund in court paid upon their claims to the exclusion of the claim of the Bank of Wilcox. There are
3. Counsel for the appellants insist that the evidence does not sustain the finding of the court that the insur-
AFFIRMED.