Planters & Mechanics Bank v. Floeck

Conclusions of Fact. — The appellee, a judgment creditor of one W.D. Alexander, garnished the appellants, the Planters and Mechanics Bank and James A. Patton, the president of said bank, on December 5, 1891. The petition averred that the affiant had reason to believe that the said bank and Patton were indebted to the said Alexander, or that they had in their hands effects belonging to the defendant Alexander. On the 5th day of January, 1892, the said bank answered, denying any indebtedness from it to the said Alexander, at the time of the service of the writ of garnishment, or since that time, or at the time of its answer; and it further averred that it did not have any effects belonging to Alexander at the time of the service of the said garnishment, or since then, or at the time of its answer, nor did it know of anyone who was indebted to Alexander or held effects belonging to him, save and except that it held for collection two certain promissory notes, executed by one G.A. Gibbons to said W.D. Alexander, one of which was for $1305, dated July 6, 1888, and payable one day after date, and bearing interest at the rate of 10 per cent per annum from date, with a credit of $50 indorsed; and the other was for $1890, and also due one day after date, and dated February 10, 1888, and bearing like interest as the first note, with a credit of $62 indorsed, both credits being money paid upon the interest due upon the notes; that said notes were assigned to the bank on the 1st of September, 1891, and that about the 1st of October, 1891, long prior to service upon the bank of the plaintiff's writ of garnishment, it was notified that said notes had been assigned by the said Alexander to John Finnegan Co., a mercantile firm of the city of Houston, and that an order was exhibited to the bank from said Alexander upon it, directing all collections made upon the said notes to be paid to the said Finnegan Co., and that thereupon the bank agreed to collect said notes for account of the said Finnegan Co.; and said bank further averred that it had reason to believe, and did believe, that said notes were transferred in good faith and for *Page 420 full value to the said Finnegan Co. The answer concluded with prayer that the garnishee be dismissed with its costs, and prayer that the court would protect it, and offering to make any further answer or disclosure herein which to the court might seem best. The garnishee Patton, on the said 4th of January, 1892, answered substantially as did the bank, and in addition he alleged that the payor of said notes executed to him, on the 8th day of September, 1891, a mortgage upon certain personal property, consisting of stocks of merchandise and tailor tools, situated in Houston and San Antonio, Texas, and also upon the outstanding book accounts and bills receivable, to secure the payment of said notes; that said chattel mortgage was duly executed by the said payor, the said G.A. Gibbons, and duly recorded as by law required, and that said garnishee took possession of said property and choses in action, and was proceeding to sell the same, but that on or about the 4th of October, 1891, by an order of the Circuit Court of the United States for the Eastern District, he was compelled to turn over and deliver all of said property and choses in action to J.E. McComb and T.W. Ford, receivers appointed by said Circuit Court in the two suits of John Maguire v. G.A. Gibbons and Patrick J. Cunningham, then pending in said court. The answer concludes, as did the answer of the bank, with an offer to make other answers and disclosures, as may be required by the court, or by the plaintiff, at any time when called upon so to do, and with prayer that garnishee be protected, and that he be discharged with his costs, including a reasonable attorney's fee. On the 16th of December, 1892, the plaintiff, appellee here, filed a supplemental petition, in which she declares that the litigation referred to in garnishee Patton's answer has been settled, and that said Patton has received the sum of $2600.93 belonging to W.D. Alexander, the defendant in the original answer; that the order given by Alexander to Finnegan Co., set out in garnishee's answer, was given without consideration, and with the intent on the part of said Alexander, and with knowledge of such intent on the part of Finnegan Co., to hinder and delay his creditors; and she prays that Finnegan Co. be made parties defendant to the garnishment proceedings. On November 27, 1893, Finnegan Co., composed of John Finnegan and Robert E. Paine, filed their answer, in which they deny the allegations of fraud in plaintiff's supplemental petition, and aver that the notes in question were transferred by Alexander to them in payment of a pre-existing indebtedness to them from Alexander, and for the further consideration of advances of money to be made by them to Alexander, from time to time, as he might need; and they aver that they did not know, at the time of the transfer of said notes to them, that he had other creditors than themselves; and that they took the notes to secure the payment of a debt due them by Alexander, which debt they allege was due them on an account of loans sustained in the purchase and sale of wool in the year 1887, which wool was purchased on joint account for them and for Alexander, they advancing the money for the purchase and shipment of *Page 421 the wool, and Alexander doing the buying, the contract between them being that Alexander should share equally with them in the profits and losses of the venture; that the wool was finally sold, after having been kept on hand many months, at a large loss; that the sales of the wool were reported to and exhibited to Alexander at the time, but that he was then, as he averred, unable to pay his part of the loss, but promised to do so as soon as able; that the last of the sales was made in 1888, and that in September, 1891, Alexander reported to them that he was now able to settle for his part of the loss, and that defendant Paine and Alexander, from the books of the firm of Finnegan Co., ascertained his share of the loss, and for which sum, with interest thereon, Alexander executed his two promissory notes in September, 1891, one dated September 1st, for $895.75, payable to the order of Finnegan Co., with interest at 10 per cent per annum from date, and due thirty days after date, and the second dated September 28, 1891, for $850, payable to the order of Robert E. Paine, with interest at 10 per cent per annum, and due one day after date; and that to secure the payment of these notes, and also to secure Finnegan Co. for any advances they might thereafter make him, the said Alexander gave to them an order about the 1st of October, 1891, upon the Planters and Mechanics Bank, for all moneys collected by them on the notes described in said garnishee's answer; and they aver that said notes in said garnishee's answer described, and the moneys collected thereon, were absolutely assigned to said defendants; and the said defendants further aver that they did make advances to said Alexander long before the service of the writ of garnishment in this case, and which advancements and the said two notes due them from Alexander exceed in amount the money that can be realized upon the notes in the hands of the said garnishee. On the 13th of December, 1895, the plaintiff filed her second supplemental petition, in which she denies the allegations of the defendants Finnegan Co. that Alexander transferred to them the notes in the hands of the garnishee in consideration of an indebtedness from Alexander to them, and again charges that the assignment was made in fraud of the creditors of said Alexander, and that the said defendant Paine, of the firm of Finnegan Co., had conspired with the said Alexander to defeat his creditors in the collection of their debts. She further avers that the suits referred to in garnishee Patton's answer as then pending in the Circuit Court of the United States have been settled, and all of the property covered by the mortgage given to secure the notes of Gibbons to Alexander has been returned to the said Patton, and that he has collected on said notes some $2600, and which sum is now in the Planters and Mechanics Bank, and that it is conceded that said money has been collected and is now in the garnishee's possession; and plaintiff further avers that, as said garnishee the said Planters and Mechanics Bank has submitted itself to the jurisdiction of the court, and has offered to make any further answer or disclosure which the court may require, the said money is subject to the order of the court, and she therefore prays for *Page 422 judgment for said moneys. This petition was duly sworn to by plaintiff on November 9, 1896. Garnishees moved to strike out plaintiff's second supplemental petition, assigning, among other reasons for said motion, that said supplemental petition is not a contest or traverse of garnishee's answer, and presents no legal ground why garnishee's application for discharge should not be granted. In this motion the defendants Finnegan Co. joined. The motion was overruled, and both garnishees and defendants excepted; and upon trial of the cause, verdict and judgment were rendered for plaintiff, and garnishees and defendants appeal. Upon the facts of the case, as disclosed by the record, this court concludes that there is ample evidence to sustain the verdict of the jury, either upon the theory that there was no indebtedness from Alexander to Finnegan Co. at the time of the transfer of the notes due from Gibbons to Alexander by the latter to Finnegan Co., or if there was an indebtedness, the transfer was made with the fraudulent intent on the part of Alexander to defraud the plaintiff, and that this intent was known to and participated in by defendant Paine; that the money charged by plaintiff to have been collected by Patton upon the Gibbons notes was collected by Patton after he and his co-garnishee, the Planters and Mechanics Bank, had answered plaintiff's garnishment, and that the collection of such money, and the possession of the same by the bank at the time of the trial, were admitted facts, and that appellee was, as averred by her, a judgment creditor of the said W.D. Alexander.