Clark v. Robbins , 8 Kan. 574 ( 1871 )

The opinion of the court was delivered by

YAtENroíB, J.:

Several questions are raised in this case, among which is the one whether a certain voluntary assignment made by James Eobb and Yincent O. Eobb, partners as “ Eobb Brothers,” to ¥m. H. Clark, for the benefit of the creditors of said Robb Brothers is valid. If this question be answered in the negative, as we think it must, such answer will virtually dispose of all the other questions, for then, in whatever way the other questions might be answered the same result would follow — the judgment below would necessarily have to be affirmed.

By said assignment' Robb Brothers assigned to Clark a certain store containing boots and shoes, hats and caps, etc., “saving, excepting and reserving from their stock of boots and shoes, hats and caps, goods, wares and merchandise, property to the value of $400 each, which said James Robb and Yincent C. Robb, parties of the first part, shall elect to retain as stock in trade under the laws of the state of Kansas exempting certain property from sale on execution or other process.” In whatever aspect this assignment may be viewed, it-is void. If it be considered that the assignment transferred all the said goods to Clark for the purpose that he should hold them in trust for the Robb Brothers until they should receive $800 worth of the same, and then that he should hold the remainder, if there should be any remainder, in trust for the creditors of the Robb Brothers, such assignment would be void: Gen. Stat., 504, § 1; Kayser v. Heavenrich, 5 Kas., 324. In the case of Kayser v. Heavenrich the doctrine is laid down broadly that “ A voluntary assignment by an insolvent in trust for his creditors, which reserves to the assignor any benefit or advantage out of the property conveyed to the injury of the creditor, renders the assignment void.” In this case $800 worth of the very property assigned is reserved for the benefit of the assignors, and every article of the same is subject to their claim until they make their election as provided by the assignment. But if it be considered that the assignment transferred only an interest in the goods to Clark, constituting him a tenant in common with the Robb Brothers, still the assignment would be void. Viewing the assignment in this light, while the interest of the Robb Brothers may be considered to some extent fixed and definite, the interest of Clark is only contingent, and very indefinite and uncertain. Their interest is $400 each, or $800 in the aggregate; his interest may be nothing, or it may be $1,000. There is nothing in the assignment that shows the goods were worth more than $800; and there is nothing to show what they were considered to be worth by the parties. What proportion of the goods were the Eobb Brothers to retein? How was it to be determined how many of the goods they should receive for $800 ? Who was to fix the value of the goods they should elect to retain? None of these questions were definitely answered by the assignment. Perhaps it was all to be left with the Eobb Brothers themselves. If so, who would suppose the assignment to be valid? Certainly, whatever interest Clark may have had in the goods, there is no provision in the assignment for separating it from the interest of the Eobb Brothers, except by the election of the Eobb Brothers themselves. Clark was to have only the remainder, or surplus over, after the Eobb Brothers had elected what,articles or portion of the goods they would retain. But suppose they should never elect, or should delay electing for an unreasonable time? What would be Clark’s remedy? Would • he resort to a long and tedious litigation to compel them to elect? and if so, would an assignment which should put it in the power of the assignor to hinder,.delay, and postpone his creditors for such an unreasonable time be valid in law? (Gen. Stat., 504, § 2.) And what other possible remedy would Clark have? If this view of the assignment is the correct one Clark did not become the owner of a single article of all the goods that were assigned to him; nor did he even obtain any absolute interest in a single one of such articles. Suppose that he had taken possession of some such article and said, “ Here, I will take this article and dispose of it according to the terms of the assignment, for the benefit of the creditors of Eobb Brothers.” The Eobb Brothers might have answered, “ No, we shall elect to retain that article as a portion of our $800 worth of the property assigned ” — and thereby they would not only have defeated Clark’s claim of title or ownership respecting said article, but they would also have eradicated every vestige of the interest which he may have supposed he had in tbe same. Clark’s interest in tbe goods was a contingent and uncertain interest of about nine or ten hundred dollars, aa appears from tbe evidence. After tbe assignment was made, and before tbe goods were attached, be sold a few of tbe goods, and James Robb sold a few, but bow many either sold is not shown. “When tbe goods were attached they were worth $1,676.10. Tbe rent of tbe store room, tbe taxes, and certain other expenses were however by tbe terms of tbe assignment to be paid out of tbe proceeds of Clark’s interest, which would of course reduce tbe value of Clark’s interest to some extent. But thirdly and lastly, if it be considered that tbe assignment did not transfer any of tbe property or any interest in any of tbe property to Clark, then of course tbe assignment must be void. In any view of tbe case we think tbe assignment was void rrpon its face. For tbe authorities, see counsels’ brief, and also Burrill on Assignments, 179 to 183, and 228 to 232, and cases there cited. Tbe judgment of tbe court below is affirmed.

All tbe Justices concurring.