Mississippi Supreme Court, 1928

Walter Fisher Co. v. I. Lowenberg & Co.

Mississippi Supreme Court · Decided April 23, 1928 · Cook

116 So. 730; 150 Miss. 238; 1928 Miss. LEXIS 137 (Southern Reporter)

Counsel

McClellan Tubb, for appellant. Learned counsel argues that the Walter Fisher Co. should be liable for the account in question under our "Sign Statute." The Walter Fisher Co. owned the feed, flour, meal and truck and the office furniture and fixtures in this building occupied by Walker Bros. The Walter Fisher Company only took what was theirs; they took nothing that belonged to Walker Bros. It might be true that should appellee, cross-appellant, secure a judgment against Walker Bros., and had the furniture, fixtures and feed levied on under execution that the Walter Fisher Co. could not have held the feed, etc. But this was not done. This action is brought some year after Walker Bros. went out of business. Probably as an afterthought in an effort to collect their claims against Walker Bros. Title to this feed, etc., was never in Walker Bros. It belonged to and was always in the Walter Fisher Co. Then, too, if this view is not correct the Walter Fisher Co. certainly would be a creditor of Walker Bros. for the amount of the feed, furniture and fixtures. The bill in this case is not a creditor's bill, bringing in all of the creditors. Had the Walter Fisher Co. taken goods and fixtures in an amount greater than their debt, it might be liable for the excess, but it did not. Can one or more creditors come in and sue appellant under the "Sign Statute" without making all creditors of Walker Bros. parties to the bill? Have not the creditors, not parties to the bill, the same rights as the appellee, cross-appellant? We think the bill insufficient to hold appellant, cross-appellee, liable under the "Sign Statute." A.J. McIntyre, for appellee. If this court should hold that the guaranty upon the part of appellant, the Walter Fisher Company, was ultra vires and was void or voidable and nonenforceable, then I respectfully submit that appellant and cross-appellee cannot prevail in this lawsuit because of the fact that it was admittedly interested with the Walker Bros. Branch in the handling and sale of the products of the Scott County Milling Company and had on hand, at the time Walker Bros. Branch went out of business and the stock was taken over by the Walter Fisher Company, fixtures belonging to the Walker Bros. Branch to the amount of four hundred sixty-five dollars, and feed stuff of the value of eight hundred dollars to nine hundred dollars, according to the evidence of Walter Fisher, president and general manager of the Walter Fisher Company. The business of the Walker Bros. Branch was being operated under a business sign. As to just what that sign was, there is a conflict in the evidence, Mr. Walter Fisher having testified that he remembered no sign except the sign of the Brand Distributing Company. Under the holdings of our court under what is known as our "Sign Statute," being Sec. 3334, Hem. Code 1927, merchandise of any kind being kept for sale in a building with a sign without disclosing the name of the principal or partners, all the property, stock, money and choses in action used or acquired in such business shall, as to the creditors of any such person, be liable for his debts and be in all respects treated in favor of his creditors as his property. In this particular instance Walker Bros. were engaged in this particular business with a sign either of the Brand Distributing Company or of Walker Bros. Branch, and as such were handling cigars, tobacco, gum, candy, flour and feed stuff. At the time Walker Bros. went out of business there was a stock of goods on hand of an approximate value of from eight hundred dollars to nine hundred dollars and fixtures of the approximate value of four hundred fifty dollars to five hundred dollars, which was taken over by the Walter Fisher Company, and this stuff taken over by it was liable for the debts of Walker Bros. no matter under what conditions it was placed there. Columbus Buggy Company v. Turler, 73 Miss. 529 , 19 So. 232.

Opinion of the Court

*241 Cook, J.

The appellee, I. Lowenberg & Co., and a number of other mercantile creditors of Walker Bros. Branch, a partnership, filed a bill against Walker Bros. Branch for debts alleged to be due them by Walker Bros. Branch, and joined as defendants therein W. S. Fisher Company, a corporation, alleging that the Walter Fisher Company, W. S. Fisher, D. P. Walker, Jr., and L. S. Walker, entered into a contract of partnership by and under which such parties were to engage in the wholesale and retail flour, meal, feed, grain, candy, and cigar business in the city of West Point, Miss., under the firm name and style of Walker Bros. Branch, as a branch of the business of the Walter Fisher Company, which was engaged in a general wholesale grocery busi *242 ness in the city of West Point. It was further alleged that each-of said parties contributed to the stock of fixtures and goods, and the general assets of said partnership ; that said business was opened and operated under the firin'name of Walker Bros. Branch, and in the course of the business so conducted the debts for which each of the complainants sued were contracted. It was further alleged that L. S. Walker sold his interest in said partnership, and thereafter D. P. Walker, Jr., continued to conduct said business as a trader under the firm name and style of Walker Bros. Branch, without displaying a business sign disclosing the name of his principal or partner or other persons interested in the stock of goods and merchandise kept, used, or acquired in said business: that on or about February 1, 1924, the business was discontinued ; that at that time there had been acquired and used in said business a large stock of flour, meal, grains, feed, candy, cigars, an automobile, typewriter, adding machine, and office and storehouse fixtures and furnishings, and also money, notes and accounts receivable the value of all of which was charged to be in excess of the amounts due the complainants; that, when the said business was discontinued, the said Walter Fisher Company took possession of all the property that had theretofore been so acquired and used in the business of the said Walker Bros. Branch, and converted all of said property to its own use, and refused to account to complainants for any part thereof. It was further specifically alleged that the said Walter Fisher Company guaranteed the payment of all of the account due by Walker Bros. Branch to the complainant, I. Lowenberg & Co.

W. S. Fisher, president of the Walter Fisher Company, was offered as an adverse witness by the complainants, and he denied that there was any partnership between himself or the Walter Fisher Company and Walker Bros. Branch, but he testified that the Walter Fisher Com *243 pany secured a contract to handle the products of the Scott Milling Company, including flour, feed, and grains; that the Walter Fisher Company, did not have sufficient storeroom to properly handle these products; that it purchased the fixtures of the Brand Distributing Company, which had formerly handled the products of the Scott Milling Company; that it then arranged with Walker Bros., who were in the candy and cigar business, to take over the handling of the products of the Scott Milling Company on a commission basis, the profits derived from the sale of such products to be divided equally between Walker Bros, and the Walter Fisher Company; that the fixtures purchased from the Brand Distributing-Company, and a stock of flour, feed, and grain, were placed in the storeroom of Walker Bros., and the Walker Bros., thereafter operated and conducted the flour and feed'business in connection with their candy and cigar business, the Walter Fisher 'Company paying for the stock of flour and feed and receiving one-half of the profits derived from the sales thereof. He further testified that, when Walker Bros, closed or abandoned their business, the Walter Fisher Company took over and appropriated to its own use and benefit the fixtures that it had placed in the storeroom of Walker Bros., and also all the stock.of grain, feed, and flour then on hand, which was of the value of about eight hundred dollars or nine hundred dollars, claiming that these fixtures and the stock of goods and merchandise were the property of the Walter Fisher Company.

At the conclusion of the hearing of the cause on bill, answer, and proof, a decree was rendered awarding each of the complainants a separate judgment against Walker Bros., but dismissing the bill as to W. S. Fisher and the Walter Fisher Company, except as to the claim of the ap-pellee I. Lowenberg & Co., a judgment for a part of which was rendered against the Walter Fisher Company on the theory that it had guaranteed the payment of that *244 part of this account for which judgment was rendered. From the decree against it, the Walter Fisher Company appealed, and I. Lowenberg & Co. filed a cross assignment of error based upon the action of the court in denying it a recovery for its entire claim. None of the other complainants in the court below appealed from the decree dismissing the bill as to them.

Upon the proof offered upon the point, the court below held that it failed to establish the existence of a partnership between Walker Bros, and W. S. Fisher or the Walter Fisher Company, and we are unable to say that the court committed error in so holding.

Conceding, for the purpose of this decision, that the letters offered by the appellee to show that the Walter Fisher Company guaranteed the payment of appellee’s account with Walker Bros, were sufficiently identified to render them admissible, still we are of the opinion that these letters fail to establish a guaranty of any part of this amount, and that the court was in error in holding that the appellant company had guaranteed a part of this account, and for this error the decree- of the court below must be reversed.

The undisputed proof in this case shows that the Walter Fisher Company intentionally placed the fixtures and stock of flour, feed, and grains, in the custody of Walker Bros., to be kept in their storehouse and sold as a part of their stock, and that these fixtures and a considerable stock of such goods and merchandise were taken over and appropriated by the Walter Fisher Company when Walker Bros, went out of business. There was displayed no business sign to indicate that the Walter Fisher Company owned or was interested in this stock of. goods, and there was nothing to indicate that Walker Bros, were not the real owners thereof, and, by virtue of the.provisions of section 4784, Code of 1906 (section 3334, Hemingway’s 1927 Code), this property, having been acquired and used in the business of Walker Bros., was, as to *245 their creditors, their property and liable for their debts. The cause will therefore he remanded to the court below for the purpose of adjudicating the rights of the ap-pellee against the Walter Fisher Company under and by virtue of the staute above referred to.

Reversed and remanded.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.