Rouse, Hempstone & Co. v. Frank & Co. , 84 Ga. 623 ( 1890 )

Simmons, Justice.

This was a money rule, and it was agreed by the parties that the trial judge should pass upon the law and the facts without the intervention of a jury. Those .facts will be found in the official report of the case, The judge, after hearing the facts and the argument, awarded the money to Frank & Co., to which judgment the plaintiffs in error filed their bill of exceptions, and assigued as error that “ the court erred, under the facts and circumstances herein set out, in not awarding the said fund to movants.” We have carefully read the evidence sent up in the record, and cannot say that the court erred in its judgment in awarding the money to Frank & Co. There seems to have been a struggle between the creditors of Sutton as to which one should get a mortgage upon his stock of goods. Plaintiffs in error tried him first and failed. Frank & Co. were successful, and obtained the mortgage upon which the court awarded them the money. The other creditors attacked the mortgage upon the ground that it was made to hinder and delay the creditors of Sutton, because Frank & Co. agreed with Sutton that if he would give them the mortgage, they would furnish him other goods to the amount of $700. The court, sitting as a jury, passed upon this question and found that this mortgage was not made for the purpose of hindering and delayingthe other creditors of Sutton, and we cannot say, under the facts of this ease, that his finding was erroneous. It seems to have been simply an inducement on the part of Frank & Co. to Sutton to get him to make the mortgage. Under certain circumstances, it may be a very proper .thing for a creditor to oiler to furnish other goods to his debtor in order to induce the debtor to secure his past indebtedness, and in order to allow the debtor to go on with his business so that he might be enabled to pay his creditors’ demands. Of course, it greatly depends upon the intention of the parties at the time the mortgage was taken — whether they acted in good faith, or whether it was done to hinder or delay other creditors. The court, acting as a jury in this case, having found that it was not done to hinder or delay the other creditors of Sutton, we affirm his judgment.

It was also contended that the fact that Sutton inquired of Ilawes and Hecht whether he could be “ closed up ” or not if the McIntyre mortgage did not cover all his property, and was told that he could be,-and that thereupon he gave the mortgage to Frank & Co., showed that this last mortgage was made to hinder and delay the other creditors, because the two mortgages covered all his property, and deprived other creditors from filing petitions for the purpose of placing his property in the hands of a receiver, etc. This theory doubtless was considered by the judge in coming to his conclusion, and he found against it; and we cannot say, under the facts in the record, that he erred in his finding.

Judgment affirmed.