Neer v. Oakley

gage was executed in fraud of creditors, and that it was therefore void as to them. It appears that, in 1883 or 1885, Joseph Curtis and Milton M. Neer entered into a copartnership for the purpose of buying and selling horses. Their united capital amounted to but $40, with which they bought their first horse. They afterwards procured credit with Oakley & Smith, from whom a large number of horses was purchased, which were paid for from time to time, as money could be procured for that purpose. Milton Neer testifies that when the firm commenced business he was otherwise engaged at $12 per week. In consideration of his giving up his employment, and giving his personal attention to the business of the firm, it was agreed that he should draw out from the concern $12 per week as salary; Curtis being a drummer for a cracker-house, and not being able to give any time to the business. There were no articles of copartnership, but it was expected each would contribute his share, when necessary, in order to meet payments. Neer testifies that on several occasions, when it was necessary for the firm to have money to defray expenses or make payments on horses or other stock, with the knowledge and consent of Curtis, he borrowed money from his wife, which money was all used for the benefit of the firm; that he borrowed it on the credit of the firm, and not on his personal credit; that he borrowed it with the understanding and intent that it should be a firm, and not a personal, debt. The money obtained from his wife was her own money, earned by her in the millinery business, and in keeping boarders. A portion of it was also obtained from her mother and from her father’s estate. With the understanding that a mortgage by the firm of which he was a member could not be made directly to his wife, it was, by advice of counsel, made to Palmer, and at once assigned to the plaintiff. He further testifies that, though Oakley & Smith liad pressed for payment of a large claim, the mortgage was made only for the purpose of securing a debt of the firm to his wife, and without any intent to save anything for himself as against his other creditors. The plaintiff testified that in taking the mortgage she had no intent to defraud creditors, but only desired to secure what the firm owed her; that the money was not loaned to her husband to help make up his share of the capital, but for the purpose of paying the debts of the firm. As to the sources from which she derived the money, her testimony corroborates her husband’s. Joseph Curtis testified that it was understood between him and Neer that each should putin an equal amount of capital, and that they always endeavored to do so; that he never knew of any indebtedness whatever to Mrs. Neer, nor where Milton Neer obtained the money supplied by him; that Neer put into the concern only about $350, while his contributions amounted to about $3,000. The jury rendered a verdict for the plaintiff for the amount of her debt, and the court overruling a motion for a new trial, defendants appeal, assigning as error the submission of the question of the firm’s indebtedness to plaintiff by reason of insufficiency of evidence; the admission of evidence to show that the mortgage was made to secure an indebtedness to plaintiff instead of Palmer, and contending that Neer could not, under the circumstances of the case, make a mortgage of partnership property, in the firm name, which would be valid as against his co-partner or the creditors of the firm.