Blum v. Bratton

FISHER, Chief Justice. The appellants Leon & H. Blum, as creditors of J. H. Brodie & Co., sued out a writ of attachment from the District Court of Comanche County, which was levied by the appellant T. E. Wilson, sheriff of Comanche County, upon a stock of merchandise in the possession of the appellee, W. R. Bratton, who claimed the same as assignee of the firm of J. H. Brodie & Co. Appellee brought suit against the appellants for the conversion of the said stock of merchandise. Trial was before the court without a jury. There was a judgment in favor of the appellee for $1881.56, from which judgment appellants prosecute this appeal. We find the facts to be as follows: 1. That J. H. Brodie & Co., a firm composed of J. H. Brodie and W. B. Brodie, was before the 1st day of October, 1889, engaged in the mercantile business in Comanche, Texas. 2. That said firm was on the 1st day of October, 1889. insolvent, and that upon that day the firm, through W. B. Brodie, made and delivered to appellee the following deed of assignment, to-wit: ''■The State of Texas, County of Comanche.—This indenture, made this 1st day of October, A. D. 1889, by and between J. H. Brodie & Co. and W. R. Bratton, all of Comanche County, witnesseth: That whereas the said J. H. Brodie & Co. are jointly indebted in divers sums of money, which they are unable to pay in full, to different creditors, whose names are stated in the annexed list, and they desire to make a fair distribution of their property and assets among those of their creditors who will consent to accept their proportional share of their estate and discharge them from their respective claims in accordance with the statute. “Now therefore, in consideration of the premises and of the sum of one dollar to them in hand paid by the said W. R. Bratton, the said J. H. *229 Brodie & Co. do by these presents bargain, sell, convey, release, and set over unto the said W. R. Bratton all their real and personal estate, other than that which is by law exempted from execution, to have and to hold, unto him, the said W. R. Bratton and his successors, in trust for the benefit of the creditors of the said J. H. Brodie & Co. as aforesaid. And the said W. R. Bratton on his part covenants and agrees to faithfully perform his duties as assignee in accordance with the statute concerning assignments for the benefit of creditors. “ In testimony whereof, witness our hands, October 1, 1889. “ J. H. Brodie & Co., 6* By W. B. Brodie.” This assignment was duly and properly acknowledged on the 1st day of October, 1889, by the said W. B. Brodie for the firm of J. H. Brodie & Co., before a notary public of Comanche County, Texas. 3. That at the time of the execution and delivery of the deed of assignment, and before that time, J. H. Brodie was an absconding debtor, and left the stock of merchandise of the firm in the possession of W. B. Brodie. 4. That W. B. Brodie had paroi consent from J. H. Brodie to execute the deed of assignment. 5. That J. H. Brodie, at the time of the execution and the delivery of the deed of assignment, had no other property than his interest in the firm of J. H. Brodie & Co. 6. It appears that the property of J. H. Brodie & Co. is a stock of merchandise and accounts, etc., and is wholly personal property. 7. That W. R. Bratton, appellee, duly and legally qualified as assignee under such deed of. assignment, and that J. H. Brodie filed, as required by law, a list and schedule of the creditors and inventory and assets of the property and estate of J. H. Brodie & Co., and the same were duly recorded, etc. 8. That appellants have a valid debt against J. H. Brodie & Co. in the amount of $3325.97, and that suit was filed on said debt in the District Court of Comanche County, and that an attachment was issued and levied on the goods transferred by the deed of assignment by the appellants. 9. That the value of the goods levied upon by the writ of attachment is the sum of $1881.56. Objections were made in the court below to the evidence of witnesses Hamilton, W. B. Brodie, and Cunningham, as to certain statements made by J. II. Brodie before he left Comanche, and before the assignment was made, tending to show his purpose to be to make an assignment of the property of J. H. Brodie & Co., and also tending to show that he authorized W. B. Brodie to execute the assignment. Objection is also made to *230 evidence showing that J. H. Brodie had no property other than his interest in the firm assets. Without entering into a discussion of this question and giving our reasons in full, we hold that the evidence objected to was admissible. Coffin v. Douglass, 61 Texas, 406; McKee v. Coffin, 66 Texas, 307. The next question raised is, that paroi authority given by J. H. Brodie was not sufficient to authorize W. B. Brodie to execute the assignment so as to bind the members of the firm. The evidence shows, that the assets of the firm are personal property, and that J. H. Brodie owned no other property, and that he authorized his partner, W. B. Brodie, to make the assignment if he did not hear from him by a certain day. Failing to hear from J. H. Brodie within the time agreed, W. B. Brodie executed the deed of assignment. These facts sufficiently authorized W. B. Brodie to execute the assignment, and it is binding upon him as well as J. H. Brodie. McKee v. Coffin, 66 Texas, 307. The next question to be considered is, Does the deed of assignment pass the individual property of the partners as well as the assets of the firm ? We think it does. The terms employed in the instrument are in many respects similar to those passed upon in the cases of Shoe Company v. Ferrell, 68 Texas, 638; Coffin v. Douglass, 61 Texas, 406; and Mc-Guffin v. Sowell, 1 Texas Civil Appeals, 187. The court in those cases holds, that the instruments are sufficient to pass the individual property of the members of the firm as well as the firm property. We find no error in the record, and affirm the judgment. Affirmed. Delivered January 18, 1893.