Beachman v. Aurora Silver Plate Manufacturing Co. , 110 Ala. 555 ( 1895 )

HEAD, J.

The record presents but a single question on the merits, and that is one of fact. To this counsel on both sides have mainly addressed their argument. The complainant, appellee here, is a judgment creditor of J. S. Sugars & Co., and filed its bill to hold the said Beachman as trustee ininvitum of certain merchandise which he purchased from said firm in alleged fraud of its creditors. The controversy turns upon the inquiry whether the goods, alleged to be fraudulently conveyed to him, were worth as much as $1,500, or only $1,200, at the time of the purchase. In a former suit of a like nature, instituted by creditors of said firm to assail said transaction, Beachman, the alleged fraudulent grantee, who had had long experience in the business, and who was familiar with the stock, testified that the goods purchased by him were worth $1,500 at a fair valuation, and that in referring to values, he meant cash values. He purchased at that price, givinghis interest bearing notes. Upon this estimate, the claims of creditors in the former case, exclusive of costs of the suit, and interest after his purchase, did not consume his. entire liability, and the complainant filed this bill to subject the balance to the payment of its claims, and to reach other property procured by said Sugars of Beachman The entire real defense consists in the assertion that the property purchased by him was worth only $1,200, at a cash valuation, and that he has accounted for that amount, in the previous suit of other creditors. He now swears to this effect, in the face of his former contrary testimony. . Annie Sugars virtually makes no defense. The goods sold to Beachman inventoried considerably more than $1,500, and we fail to see why he would have agreed to pajr more than their value in view of his perfect familiarity with them. We think the city court was correct in holding him upon the basis of his first evidence, supported as it is, by all the circumstances. We are loathe to believe that he would have then testified more unfavorably to himself than the fact required.

There is another reason why we cannot reverse the decree of the city court, even if the evidence supported Beachman in his contention. The other defendant Annie Sugars was also held liable by virtue of a fraudulent procurement by her of other goods of the debtor firm, the decree being rendered jointly against her and Beachman, for the amount of complainant’s debts, as they had converted the goods. She declined to appeal, and Beach-man sued out the appeal in the name of both defendants, as was necessary and his legal rights. When the case reached this court, he did not move for a summons and severance, but assigned error jointly with her, by attorneys, as representing the appellants. This must be treated as an appearance and joinder in the assignment of Beachman in this court by Annie Sugars, as she had the right to do. Under these circumstances the assignment being joint, we could not reverse, except for errors prejudicial to both appellants. It could not be sexfiously contended that there was any error in the decree so far as Annie Sugars is concerned, and no argument has been made to prove that there was any. If Beachman wished to assail the decree for error therein as to him alone, he should have severed and assigned errors separately, so as to present the question -properly.

For these reasons, the decree of the city court must be affirmed.