Wynne v. Simmons Hardware Co.

Citations

• 67 Tex. 40
• 1 S.W. 568
• 1886 Tex. LEXIS 612

Syllabus

<p>■ 1. Assignee Liability—Act March 24, 1879, Construed—Creditors— Estoppel.—A creditor accepted under the terms oí an assigment made under the Act of March 24, 1879. and presented his claim, which was a just one, to the assignee within the time required by law, but failed to verify it by affidavit. It was allowed and filed by the assignee, and remained on fi’e subject to inspection, by the creditors for several months, No objection was raised to it, and the assignee paid the owner its pro rata. In a suit brought by the remaining creditors against the assignee, to recover the sum so paid, held: .</p> <p>(1) The liability of the assignee did not depend upon general principles of equity, but upon the express provisions of the statute under which the assignment was made.</p> <p>(2) Section 7 of the Act of March 24, 1879, provides that a'distinct statement of the claim shall be filed, supported by affidavit that the debt is just, etc., and that no creditor who neglects to file such statement shall take any benefit under the assignment. The language of the legislature is plain, and the judiciary are not at liberty to depart from the words of the statute.</p> <p>(3) The fact that the assignee made the payment in good faith and with the advice of an attorney, could not shield him from responsibility.</p> <p>(4) The statute prescribes what diligence creditors should use to prevent any improper distribution of the trust fund, but only imposes its exercise when the claim is so authenticated that the assignee may legally pay it if objection be not made in the manner prescribed.</p> <p>(5) The mere silence of the creditors, there being no words or acts inducing the assignee to believe that they consented to the payment of the claim, could not estop them from recovering, since the law did not require them to speak.</p> <p>2. Same—Expenditures—Assignee’s Liability.—It is the duty of an assignee to convert the assigned property into money at the earliest practicable period, and n