
    Claflin & Co. et al. v. Vonderau & Co. et al.
    
    June 10, 1895.
    Petition for injunction and receiver. Before Judge Hutchins. Clarke county. February 4, 1895.
    Oh December 7, 1894, Yonderau & Co., a firm composed of W. P. Yonderau and A. S. Parker, executed and filed for record an assignment for creditors, to A. "W. Yess. On the same day they filed a mortgage on their stock of goods in favor of some of the preferred creditors mentioned in the assignment deed, this mortgage being dated November 28, 1894. Yess accepted the trust delegated in the assignment, on the day it was executed. One month afterwards, the H. B. Claflin Co-, and several other creditors brought their petition to set aside the assignment as illegal and void, and as made to hinder, delay and defraud creditors of the assignors; and for injunction and receiver. The pleadings and evidence need not be set forth here. On the hearing the court rendered the following judgment: “Upon considering the allegations made in the petition, the answers of the defendants, the evidence as contained in the documents and affidavits submitted, and the argument of counsel, and being of the opinion that the inventory and schedules attached to the assignment are sufficiently full and complete to put parties interested on notice, and not to be misleading; that the allegations of fraud in making tbe assignment and tbe preferences thereby given,' are not sustained by proof; and that' it is to the interest of creditors that the assignee, who is under good bond for the faithful performance of his'duties, shall proceed with the. execution of his trust: — the application for the appoint-' ment of a permanent receiver and for injunction (except as', hereinafter provided) is refused. The order appointing a: temporary receiver is revoked, and it is ordered that E. ~W. Lucas the temporary receiver, restore to the possession of said assignee, A. W. Yess, all assets of every description now in his possession or control, and account for and pay to him all moneys that have come into his hands as such temporary receiver, less what he has expended in his management of the business. But in view of the evidence touching the purchases by the defendants of merchandise from II. B. Claflin Co., and from O. E.. Graham & Co., respectively, it is ordered that said assignee keep separate accounts of his sales of the bill of goods identified by the affidavit of II. L. Cook as purchased of H. B. Claflin Co. in the months of August and September, 1894, and that identified by the affidavit of ~W. J. Graham as purchased of C. E. Graham & Co. during said months, and that he retain and have the proceeds thereof subject to the order of the court upon the final order and decree in this case.”
   Atkinson, J.

1. The inventory and schedule of property attached to the assignment covering in terms all the property owned by the assignors, containing a specification of all classes of the goods assigned, and designating the locality at which they were to be found, was, in legal contemplation, sufficiently full and complete. At least this inventory and schedule was made substantially in compliance with the terms of the statute.

2. On the merits, there was, in view of the evidence contained in the record, no abuse of discretion in denying the injunction, or in refusing to appoint a permanent receiver.

Judgment affirmed.

Lumpkin, J.,

dissenting as to sufficiency of the inventory and schedule.

To this judgment the plaintiffs excepted.

The assignment recites, that the assignors, doing business in dry goods and notions, are in a failing condition or failing debtors, and cannot continue business and meet their obligations,- owing to their inability to collect what is due them; that they desire to pay all their indebtedness in the shortest time possible and with the least risk of loss to their creditors, and think it proper that preference should be made; that they are confident, if their assets are properly disposed of and not sacrificed, all their creditors will be paid in full, and that it will be to the interest of all the creditors for the firm to assign their assets to some discreet and proper person who will manage them for the benefit of all interested, rather than have the sheriff take charge and sell. Therefore, in consideration of the premises and of' the things to be done hereinafter mentioned, and of $5 cash, in hand paid, they grant, convey and assign to Vess and his. assigns all their merchandise, stock in trade, fixtures,, amounts due them on notes, accounts, etc., and all property of every kind belonging to them as a firm. Bef erence is made to attached schedules of assets and creditors, as. full and complete. The assignee is to take the property conveyed in trust to sell and- dispose of at public or private sale at his discretion, and to collect all sums due the firm, and to reduce said property to cash as early as practicable consistently with the interest of the creditors, to. be judged, of by the trustee, and to dispose of the same as follows: 1st. Pay the expenses of procuring such help as he may need, to be determined by him, in selling and disposing of the property and collecting the notes and accounts; also the fees of an attorney if he should need one; also store rent, insurance, and such incidental expenses as are necessary while disposing of the p>roperty; also pay himself $100-monthly, until the property is sold out, .for his services, and. the sum of five per cent, of the collections that pass through his hands after the sales are over; also pay to John J. Strickland $250 for professional services in drawing this, deed and other service, and pay the clerk his fee for recording this deed. These debts are first preferred, being in the nature of expenses. 2d. Pay to Lee, Tweedy & Go. the amount of their judgment against Vonderau & Co., the same being about $240. 3d. Pay to the following named persons and firms the amounts stated (naming twenty-four, including W. J. Parker, note, $901.30; Hi. L. Bickers, two-notes, $566.41; W. PL Bobertson, $369.12; St. Elmo Lodge, No. 40, K. of P., account, $153.85; the others ranging in amount from $10 to $250, except two notes and accounts in favor of James White, cashier, for $1,178),. all of whom are hereby made preferred creditors after the sums mentioned in the preceding paragraphs have been paid in full; the creditors mentioned in this paragraph not to be preferred one over another, but to be paid equally. 4th. Pay to all other creditors, without preference among themselves, the full amount due each, or such per cent, thereof as he may have funds to pay, after paying-all the preferred claims as above stated.

In the inventory of assets the stock of goods is set forth in forty-four items, each with an amount opposite, thus: 190 pcs. dress goods, $2,550.24; 15 pcs. velvets, $300; 125 pcs. silk, $1,125.10; 80 pcs. velvet ribbon, $125.50; 2401 pcs. wash goods, $650; linen damask and towels, $285.10; linen damask and napkins, $375.50; 1 lot white goods, $45; 1 lot swiss and mull, $38.75; 1 lot embroidery, $75.30; 60 pieces jeans, $410.10; 1 lot notions and fancy goods, $210; 1 lot underwear’, $250.15; 1 lot notions and fancy goods, $1,546.15; 1 lot dress trimmings, $585.40; 1 lot notions, $1,010; 1 lot hosiery, $450.25; l#lot notions, curtains, poles, and fixtures, $750.20; 1 lot trunks, $175; -etc., etc. The aggregate of the forty-four items is $16,542.79. The list of accounts due to the assignors contains a great many names with amounts opposite each. It also contains twenty-six names each with a pen mark drawn through it, and of these, twenty-two seem to have had no amount placed opposite them. It is explained in defendants’ answer, that the accounts thus indicated were collected before the assignment was filed. The inventory and schedule of indebtedness of the assignors sets forth the names of the creditors, their places of residence, and the amounts due each, thus: The H. B. Claflin Co., New York, 12 notes, $4,180; Lee, Tweedy & Co., N. Y., judgment, $204.22; The Meridian Curtain Co., N. Y., acc’t, $42.75; Nonatie Silk Co., Cincinnati, acc’t, $5.60; C. E. Graham & Co., Greenville, S. C., aec’t $402.63; O’Earrell & Ash, Athens, acc’t, $12.23; J. A. Scriven Co., New York, $60; Ooolis Bros. & Oo., N. Y., $34.75; Standard "Watch. Co., Syracuse, N. Y., $24; etc. In some cases the kind of claim (■i. 6., whether account or note) is indicated; in others it is not. The schedules were each sworn to separately.

Lumpkin & Burnett and Harrison & ■ Peeples, for plaintiffs. John J. Strieklwnd, Erwin & Cobb, Robert S. Howard and H. C. Tuck, for defendants.  