Birmingham state herald. (Birmingham, Ala.) 1895-1897, 1896-11-15
CREDITORS FINALLY WIN.
Through Attorneys Mountjoy & Tomlin-
son, Their Case in Supreme Court
Conveyance to Biederman by I.
Phillips & Bro. Held Void.

In the case or MuSkegon Valley f'urnl-
ture Co., ct al, vs. I. Phillips & Bro, ct
al, the following opinion, which Is of
interest to lawyers and litigants, was
received from the supreme court at the
chancery court on yesterday:
On JAN IA, 1892, l. Phillips & Bro, a
partnership composed of l. Phillips and
A. Phillips, engaged in the furniture bus
iness in Birmingham, Ala, sold to Joe
Biederman certain articles of furniture
from their stock, at the price of $1,249,
and also assigned to him practically all
their chooses in action which had ac-
crued In said partnership business,
amounting in the aggregate to $6,347.95.
but which were taken at valuation of
75 per cent. of face value amounting to
81, 1906 1t Is claimed that l. Phillips
& Bro. were then indebted to Biederman,
in the sum of $S,53160 and that these
transfers were made in part payment of
that Indebtedness Biederman was q
brother-in-law of l. Phillips, but not re-
lated to A. Phillips. Taking his Bieder-
mans testimony for information, 1t
appears that there were three successive
partnerships of which I. Phillips was
member. The first was Phillips g. Ber-
ger, engaged in a business of some kind
not stated, at Sweetwater, Tenn; the Sec
ond was l. Phillips Bros. & Co., but were
located, in what business engaged, when
formed, or of whom composed, Except
that !. Phillips was member), Is not
stated; the last, l. Phillips & Bro, en-
gagged In the furniture business as afore-
said. in. Birmingham, Ala; but when
formed Is not stated 1t is inferable from
the statement of the witness that Berger
sold out to Phillips Bros. & Co., and 1.
Phillips Bros. & Co. sold out to 1. Phillips
& Bro, that the several firms carried on
the same character Of business.
n nntn I to1A Ia Il
Phillips & Berger, at Sweetwater, $500
and on December 9Th, 1894, 5000, and on
February ~, 1891, l. Phillips & Bro, in
birmingham, executed to him their note
for the same, with compound interest at
8 per cent per annum, aggregating ST.
/ Phillips, Bros. & Co. $1,000, and on Janu-
airy 1, 1891, took the note Of I. Phillips &
Bro. for $1395.31 therefor. On September
IA, 1885, he loaned the same firm $1,000
of l. Phillips & Bro. therefor, for $4,000.
On September rs, 1887, he loaned the same
firm $1,000 and on January l, 1884, took
the note of 1. Phillips & Bro. for $1287. 40
therefor In April, June and August, 1889,
and October, 1890, he loaned l.. Phillips
divers specified sums of money for the
expenses Of said Phillips and family on an
EXTENDED visit to Europe, aggregating
November 10, 1891, $500, for which he then
took the note of I. Phillips & Bro. The
notes above mentioned, except, 1t may be,
the last, each included compound interest
from the dates of the several loans, to
the dates, respectively OF the notes.
When the loans other than the European
expenses were made, the checks for same
were given to !. Phillips, and | Phillips
executed the said notes, years afterwards,
given in the name of 1. Phillips & Bro.
There Is no evidence whatever, or effort
even to prove, that A. Phillips, the other
member of I. Phillips Bro. had any
connection with, or interest In the loans
made to the two preceding firms, or cou-
nection with, or interest in either of said
firms or that he was, in any wise, legal
1y or morally bound for the repayment
of the loans; nor was there an effort to
prove. that he had anything to do with, or
knowledge of the execution Of the notes
of I. Phillips, in the name Of ]. Phillips
& Bro, and there Is no pretense of any
new consideration shown for the assump-
ton of the debts by I. Phillips & Bro.
There was not even an extension of pay
ment, as the notes were made payable one
day after date.
AS to the money borrowed by I. Phil
lips for the European express, Ii Is not
pretended that the firm had anything to
do with II, except that I. Phillips under
took, as Biederman testifies, to assume
firm liability for it, though confessedly
the money was loaned by Biederman to
enable /. Phillips to take his family to
Europe for the benefit Of the health of
Mrs. Phillips. 1t Is not shown, or at
tempted to be shown, that A. Phillips
knew anything about these loans, or ever,
in any manner, assented to the assump-
ton of them by his firm, or knew that 1.
Phillips had executed the notes therefor.
Upon this state Of proof, 1t seems
scarcely necessary to say, that no legal
liability rested upon the partnership Of
I. Phillips & Bro. for any Of the indebted
ness. Upon all the evidence introduced
by the respondent, no recovery could
have been had against the partnership
in it's firm name, or against A. Phillips,
in any action upon either Of the notes, de-
Tended upon the plea of the want Of con-
sideration. Indeed, the proof adduced
here would defeat recovery against A.
Phillips, In such an action, upon the plea
of non est factum.
At the time Of the transfers to Bieder-
man. sought by the bill, in this case to be
vacate by creditors of I. Phillips & Bro.
that firm was largely indebted. owing
among others the debts claimed by the
several complainants. Az against the
rights Of these creditors, the said alleged
claims of Biederman would not afford
valid considera ton for the transfer to
him by l. Phillips & Bro. of their assets.