Pabst Brewing Co. v. Johnson

31 Ohio C.C. Dec. 675, 17 Ohio C.C. (n.s.) 1, 1903 Ohio Misc. LEXIS 348

• Court: Cuyahoga Circuit Court
• Decided: December 24, 1903
• Status: Published

Opinion

HENRY, J.

The petition must be dismissed. Section 6343 R. S. (Sec. 11102 G. C. et seq.), as amended by 95 O. L. 608, does not, we think, alter the rule of Cross v. Carstone, 49 Ohio St. 548 [31 N. E. 506] that a creditor may accept payment or security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.

Whatever may be effect of the words “in trust or otherwise” and the words “to prefer one dr more creditors,” we do not infer that, the leislature intended so revolutionary a change as plaintiff contends.

It follows that the first assignment to Pelitz did not bring this case within that statute.

Nor could the pendency of this action, considered as a creditor’s bill, have operated to prevent the administrator of Henry P. Johnson’s estate from exercising his right and discharging his duty of paying the fund in question to the administrator of Myra C. Johnson’s estate when the latter was appointed.

And whatever might have been the duty of Myra’s administrator, had he been made a party before disbursing the fund, we see nothing in the pendency of the action against Cassius L. Johnson et al to prevent lawful payment by said administrator to him, or on his order, to his creditors. And this is so, even though such transaction resulted in preferring the creditors so paid.

The end accomplished was not unlawful. Neither was the concerted means. Hence there was no actionable conspiracy.

Marvin and Winch, JJ., concur.