Bluthenthal & Bickart v. Magnus

HEAD, J. — It is clear that the bill of sale of David Wurtzburger to appellee, Magnus, and the power of attorney of Magnus to him to sell the goods for the account and benefit of Magnus, were executed, simultaneously, as part of one transaction, and must be read together as one instrument. Jenkins v. Harrison, 66 Ala. 345. Thus read, their effect is that Wurtzburger sold the goods to Magnus and agreed to retain and sell the same for him and pay to him, or deposit in the designated bank to his credit, the proceeds, less the necessary expenses to be incurred in making the sales ; and in consideration thereof, Magnus discharged the indebtedness owing him by Wurtzburger. In such a transaction, there is no implication that Wurtzburger was to be paid for his services to be rendered indisposing of the goods; and, in this case, there is no evidence of any express agreement that he should be paid for the same. The evidence is to the contrary. The argument, therefore, that there was a benefit reserved to Wurtzburger in the form of an implied agreement to pay him for selling the goods, fails. We find no evidence that the sale to Magnus was infected with an actually fraudulent intent on the part of either seller or buyer. It is true the evidence going to establish the debt which the goods were sold to pay, is not given with that clearness and fullness of detail usually required Avhen such sales are attacked by existing creditors of the seller as fraudulent, but plaintiffs are not shown to have been existing creditors of Wurtzburger at the time of the sale in question. There is no evidence when their debt was created, and we can not ascribe to it an earlier creation than the day the attachment was sued out. There being no evidence of a general intent to defraud creditors, plaintiffs being regarded as subsequent creditors, are not in a position to object to the general and indefinite nature of the proof of the consideration of the sale. Indeed, in such case, the burden is not upon the purchaser to prove the consideration at all. We concur in the finding of the trial court, and its judgment is affirmed. Affirmed.