Clark v. Clark & Blake

55 Kan. 184

• Court: Supreme Court of Kansas
• Decided: January 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Joi-iNSTON, J. :

This is a controversy over the ownership and possession of a stock of merchandise that had been owned and kept by Clark & Blake at Oberlin. They had been engaged in a general merchandise business and had become financially embarrassed, their indebtedness being nearly $30,000, which was largely in excess of the value of'their property and assets. They entered into negotiations for a sale of their stock of goods to Issac Clark and H. R. Marietta, and while negotiations were in progress the stock of goods was seized upon attachments by a number of the creditors of Clark & Blake, and among the attaching creditors was H. R. Marietta, who was to be a partner of Isaac Clark in the purchase of the same goods. Isaac Clark interpleaded in the attachment suits — there being 16 of them — claiming that he was the owner of the attached goods by virtue of a purchase of the same from the failing firm of Clark & Blake. All of the attachment actions -were consolidated and tried together, and the principal controversy was between the attaching creditors and the interpleader. The court found from the testimony that Marion W. Clark, the senior member of the firm of Clark & Blake, had attempted to sell and transfer to Isaac Clark, his father, about $10,000 worth of merchandise out of a total stock of about $14,000 belonging to the firm, but that the sale was never completed and no delivery of the merchandise had ever been made. There was a further finding that the merchandise claimed by the interpleader was the property of Clark & Blake,'and subject to the payment of their debts and to the attachments that had been levied upon the stock. Isaac .Clark complains of these rulings, and asks for a reversal.

While it appears to be conceded that the failing firm was indebted to Isaac Clark in the sum of $1,712.12, they were attempting to transfer nearly $10,000 worth of merchandise to Isaac Clark, who paid no money whatever upon the transfer, although it is claimed that he was to assume the payment of a part of the debts of the firm. There is sufficient testimony, however, to uphold the finding of the court that the sale of the goods was never in fact completed. The evidence of Blake, one of the failing firm, is to that effect; while Marietta, who was to be a partner of Isaac Clark in the purchase, disavowed the sale and caused the goods to be attached upon a claim which he held against the firm. He did not join Isaac Clark in the interplea claiming the goods. Indeed, Isaac Clark himself, on the day the attachments were levied, treated the property as that of the firm by agreeing to take a mortgage on the same to secure his claim against the firm. In the brief of counsel for plaintiff in error they concede that there is a conflict in the evidence as to the consummation of the sale, and this concession necessarily requires an affirmance of the judgment, as the finding of the trial court upon conflicting evidence cannot be reviewed here.

The judgment of the district court will be affirmed.

All the Justices concurring.