George v. Tate

ERROR to the Circuit Court of the United States for the District of Kansas.

This was an action by Samuel W. Tate upon a bond bearing date Sept. 19, 1872, executed to John J. Myers and William Green by the firm of M. B. George & Brothers as principal, and J. W. L. Slavens as surety. The bond was subject to the condition,--

'That whereas the said Myers & Green have heretofore commenced, and now have pending, a civil action in the District Court of Ellsworth County, State of Kansas, against said M. B. George & Brothers, to recover the sum of $8,509.50, and have also filed their affidavit according to law, for a writ or writs of attachment to issue for the property of said M. B. George & Brothers; and whereas writs of attachment have issued and are now in the hands of the sheriffs of those counties to which said writs of attachment have been directed; and whereas the said M. B. George & Brothers have property within the jurisdiction of said court, about to be attached under and by virtue of said writs of attachment; and whereas said Myers & Green have agreed and promised the said M. B. George & Brothers that they, Myers & Green, will recall the said writs of attachment upon their, M. B. George & Brothers, executing a bond with approved security to pay the amount of the judgment and costs which may be rendered in the said action against said M B. George & Brothers.

'Now, therefore, if we, the foregoing named bounden parties, shall well and truly pay to Myers & Green the amount of the judgment and costs which may be rendered in the foregoing named action by said District Court in sixty days from the rendition thereof, then the foregoing bond to be void, otherwise to be and remain the full force and effect.'

The petition avers that Myers & Green performed the conditions in the bond mentioned, that being indebted to Tate they assigned and transferred to him the bond and their claim and demand against George & Brothers, and that on the rendition of a judgment against that firm for $9,758 they assigned in writing it and the bond to him, together with all their right, title, and interest therein and thereto, and that the bond and judgment remain unpaid. At the time of the execution of the bond the obligees were partners doing business under the firm name of Myers Green.

The defendants' answer admits the execution of the bond, but denies the other allegations of the petition, and sets up as a defence that they were induced to sign the bond by the false and fraudulent representations made to them by Green, and of the attorney of Myers Green, that six hundred and seventy-five head of cattle, sold but not delivered to the purchasers by M. B. George & Brothers, had been attached in a suit against the latter by Myers & Green, and were then held by virtue of such attachment.

Slavens sets up as a further defence by way of set-off, that Myers & Green were indebted to the firm of Ferguson, Slavens, & Co., of which he was a member, in a sum larger than the judgment obtained by Myers & Green against M. B. George & Brothers, and that on the last of July, 1874, before he had any notice of the assignment to Tate, by Myers & Green, of the bond in suit, said firm of Ferguson, Slavens, & Co., for value, assigned to him, Slavens, their claim against Myers & Green; that he was still the owner thereof; that it was due and unpaid; and that Myers & Green were insolvent.

To these defences the plaintiff filed a general denial.

The assignments in the petition mentioned are as follows:-- 'MYERS & GREEN}

vs.}

M. B. GEORGE & BROS.}

'I, William Green, in consideration of $8,509.00 (eight thousand five hundred and nine dollars), to me paid by Samuel W. Tate, of Llano County, Texas, do hereby assign to the said S. W. Tate the within written instrument, and all my interest in the covenants and agreements therein contained. That I hereby assign, turn over, and convey to and for the benefit of S. W. Tate, of the county of Llano, State of Texas, all my right and interest in a certain suit now pending in the District Court of Ellsworth County, Kansas, wherein I, William Green, and J. J. Myers are plaintiffs, and M. B. George & Brothers are defendants.

'And I constitute the said S. W. Tate my attorney irrevocable, with full power at his own charge in my name to take all legal measures which may be necessary or proper for the recovery or enjoyment of the assigned premises, with power of substitution.

'Witness my hand and seal this first day of November, A.D. 1872.

'MYERS & GREEN,

By WM. GREEN.

'Executed in the presence of—

'G. A. MILLS.

'JOHN J. MYERS and WILLIAM GREEN, Copartners as MYERS & GREEN, Plaintiffs,}

vs.}

MOSES B. GEORGE, WILLIAM L. GEORGE, JAMES B. GEORGE, and JOHN E. GEORGE, Copartners as M. B. GEORGE & BROTHERS, Defendants}

'1874, May 14. Judgment against the said defendants, M. B. George & Brothers, in favor of said Myers & Green. Debt, $9,758.00; costs,

'Whereas said Myers & Green, since the commencement of the above suit and before the said judgment, sold their demand against the defendant so Samuel W. Tate for a debt owned by Myers & Green to Tate, and said suit has been carried on in the name of Myers & Green to judgment, and the said judgment and the bonds and instruments connected therewith and taken in said suit by the plaintiffs from the defendants and their sureties belong to said Tate: Therefore we, the said Myers & Green, hereby, for value received by us from said Tate, do sell, transfer, set over, and assign to the said Samuel W. Tate the said judgment, and all bonds and instruments taken therein and connected therewith during the progress of said suit, and all our right and title therein and thereto, with full power to said Tate to collect, sue the same, and to receipt therefor as fully as we or either of us could do. As witness our hands at Ellsworth, in the State of Kansas, this eighteenth day of May, A.D. 1874.

'MYERS & GREEN.'

There was a judgment for the plaintiff for $12,203.31. The defendants thereupon sued out this writ, and assign for error that the court below erred,--

1. In permitting the plaintiff to read in evidence the written assignment dated Nov. 1, 1872, signed 'Myers & Green, by Wm. Green.'

2. In refusing to allow the defendants to prove that they were induced to execute the bond sued on by the false and fraudulent representations of Myers & Green and their agents and attorneys.

3. In instructing the jury that 'the assignment of Nov. 1, 1872, by Green to Tate, transferred, under the evidence in this action, the bond sued on in this case, with the right of Tate to sue for Green's interest therein.'

4. In instructing the jury that 'if Slavens, before the assignment to him of Ferguson, Slavens, & Co.'s claim against Myers & Green, had notice of the assignment of the bond in suit to Tate, you will disallow the defendants' so-called set-off.'

5. In instructing the jury that 'if Slavens had such information or knowledge of the assignment as would be sufficient to put any reasonable man upon inquiry, when such inquiry, reasonably followed up, would have led to an ascertaining of the truth, he had sufficient notice of such assignment.'

6. In instructing the jury that 'if the firm of Myers & Green, on the eighteenth day of May, 1874, transferred the judgment and bond by a written assignment, and in such assignment recited that they had theretofore sold the demand against George & Brothers to Tate, and that the bonds connected therewith belonged to Tate, then any notice to Slavens, after such sale, of such sale would prevent the set-off in this action, provided such notice was before he obtained the set-off.'

7. In instructing the jury that 'an assignment of the claim in suit against George & Brothers, or an assignment of the judgment rendered thereon, would also transfer the bond sued on in this action.'

8. In instructing the jury that 'if the defendant Slavens, before the assignment to him of the claim of Ferguson, Slavens, & Co., had notice of the assignment to Tate of the Myers & Green claim against George & Brothers, you will not allow him or any of the defendants any set-off whatever.'

9. In refusing to instruct the jury that 'the interest of said Green in said demand has not been proved. The interest of partners in the property of the firm depends on the condition of the accounts between the partners, and the mere statement that Myers & Green were equal partners in business does not show what the interest of either may be in any particular portion of the property.'

Mr. Nelson Cobb for the plaintiffs in error.

Mr. John K. Cravens, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.