IN THE

Supreme Court of Appeals

of Virginia.

At Wytheville.

June Term, 1926.

F. E. :NEWCOMB, -Plaintiff,

VB.

C. W. GUTHRIE, ET ALS., Defendants.

FRoM T:Hl!l CoURT oF LAw AND CHANCERY FOR THE

CITY OF RoANOKE, VIRGINIA.

''The Briefs shall be printed_ in type not less in size than small pica, and_ shall be nine inches in length and six inches in width, so as to conform in dimensions to the print­ed records along with which they are to be bound, in accord­ance with the Act of Assembly approved March 16, 1903; and the Clerks of this Court are directed not to receive or file a Brief not conforming in all respects to the aforementioned requirements. ''

The foregoing js printed in small pica type for the in-formation of counseL •

J. M. KELLY, Clerk.

fN THE.

Supreme Court of Appeals.

of Virginia.

At· Wytheville.

Ju:n.e Term~ 1926 ..

F~ E. NEWCOMB·, Plaillt]ff,

vs.

C. W. GUTHRIE, ET ALS., Defendants·.

:.,._ ..

.~

Your petitioner, F. E. Newcomb, respectfully representa that he is aggrieved by a final decree entered in the Law and Chancery Court fo.r the City of Roanoke·, Virginia,. on De­iaember 4th, 1925, in the chancery cause therein pending of F. E. Newcomb versus C.. W. Guthrie and others in which cause your petitioner was the plaintiff and the· said C. W. Guthrie and others, were the defendants. A certified tran­script of the record in the case is· here,vith submitted to the Court. and is- prayed to be read as a part of this petition.

By examination. of said record it will be· seen that the · ,o:ltj:ect of said suit was· to enforce· a conditional sales. c-ontract

which was retained by your petitioner to· secure the balance

'i

-....: . 2

of the purGhase money due for certain personal property which he had sold to the said C. W. Guthrie and L. W. Span­gler, which said contract constituted a lien upori sa1d per­sonal property under the provisions of -section 5149 of the Code of Virginia.

The facts in the case are as follows :

By examination of the record herewith submitted, at page 1, it will be seen that on N oveniber lOth of 1923, the said F. E. Newcomb, petitioner, filed his bill in the Law and Chancery Court for the City of Roanoke, Virginia, and sued on t of the said Court his summons in chancery against the said C. W. Guthrie, L. E. Spangler, S. L. Newcomb and James P. Hart, Trustee. At pages 2-3-4-5-6-7- of said :r;ecord it will be seen that on .the 1st day of August, 1923, the said C. W. Guthrie and L. W. Spangler became indebted · to your petitioner in the sum of $2,463.58 for the balance of the purchase price of the entire stock of goods, wares, mer­chandise and fixtures and one Ford truck; that said sum was evidenced by three notes in the sum of $821.16, each payable to' F. E. Newcomb. 30, 60, and 90 days after date respectively, and that in the aforesaid conditional sales con­tract the title to the poperty was retained by the said F. E. Newcomb in the said goods, wares, merchandise and auto­mobile to secure the payment of the said sum as aforesaid, and that said conditional sales contract was properly drawn, signed and acknowledged and duly docketed in the Clerk's office of the Corporation Court for the City of Roanoke, Vir-

. ginia, on the 17th day of August, 1923, in Conditional Sales Book No. 42, page No. 185, and that default had been made in the payment of said notes.

That said Guthrie and Spangler defaulted in the first payment under the terms of the conditional sales contract, and came to your petitioner and notified him that they could not meet the payments, and delivered to your petitioner the entire property described in said conditional sales contract, and surrendered to him the entire stock of gooils and other personal property, and gave to him the keys to the store room where said goods and fbtures were located, and he, your petitioner. locked the door to same and thereby took possession of the . said property at the instance of the said Guthrie and Spangler, except some merchandise that had been previously sold by them.

3

At the time the petitioner took possession of said prop­erty no creditors had acquired any lien thereon except per­haps a deed of trust _that was executeq by Guthrie and Span­gler to James P. Hart, Trustee, on the said fixtures to se­cure S. L. Newcomb a loan of $500.00, this deed of trust be­ing subsequent to the executing and docketing of the said conditional sales contract; and ·

That after your petitioner had acquired possession of said property and had locked the same with his own key, and after he had obtained a purchaser for the said property at the price of $3,000.00, and afterl he had advertised the sale of said property according to the terms of the said conditional sales contract in a newspaper published in the City of Roanoke, as will. be seen on page 15 of the record, the said S. L. N ewcoml~ placed another lock on the said building without any authority whatsoever, and thereafter­'vards induced the said C. W. Guthrie to make an assignment. to the said James P. Hart, Trustee, for the benefit of the said S. L. N e'vcomb and other creditors; and that the deed of assignment was made October 25, 1923, after the said pub­lication; of sa.id sale, showing that F. E. Newcomb was a lien creditor, had been running· in the newspaper for the City of Roanoke for more than five days. It will be seen by ex­amination of the depositions, as disclosed by the record at pageg 54, and 55 ·

That all creditors had actual as well as constructive notice of the petitioner's prior lien.

Notice of the existence of the said conditional sales con­tract to James P. Hart, Trustee, and to all creditors was fully established by the facts and circumstances as testified to· by F. E. Newcomb, see pages 46 to 55 inclusive, by the docketing of said conditional sales contract as shown by a transcript of the record, and a copy teste of the memorandum of said contract as herewith filed and marked ."Exhibit A."

See 209 Federal 811. Also Archbucker vs. Gates, 95 Va. 802, which hold tl1at notice can be shown by cir­cumstances, and tJ'tat a trustee is a purchaser.

After taking possession of the property as aforesaid~ and before the institution of the suit the petitioner notified the defendant that he had possession of the property under the conditional sales contract, and up to the institution· of

4

this suit no .creditor had obtained jUdgment, that all judg­ments, as allegegd in the· pleading in this cause on the part of the defendant were obtained during the litigation of this cause, and after the property in question had been brought under the jurisdiction of the ·Court.

. It will be seen from the records that a demurrer was .entered to the original bill of your petitioner and the Court sustained the same with leave to the petitioner to file amend­ed biU, whlch was accordingly done embodiying the orig­inal bill with the additional allegations that James P. Hart, Trustee, had actual notice.

It will be further seen that the defendants including the said ,James P .. Hart, Trustee, filed their demurrer and an­swers to the said amended bill an.d evidence was taken on behalf or F~ E. Newcomb for the purpose of establishing hls claim against the"said Guthrie· and Spangler,. and up0n the question of notice.

It will be noted that James P. Hart,. r.r:rustee, and the attorneys for the creditors did not go upon. the. witness s.tand to deny that be had aetl!lat knOJW1edge and n(!)Jtice &f the; peti­tioner 's- claim and l'ien at the time of the· assignment of Guth­rie to him.

It 'vill be further noted that petitioner had S. L. New­comb summonsed to testify in his behalf and was unable to compel his attendance, and that the efforts on the· part of the said James P. Hart, Trnstee, were· to defeat by a tech­:nicali11y the· just a11d prior claim of. the petitione'E.

The Gourt 's attention is called to the wordi~g of tile statute. 8ection 5189 of the Code of Virginia which only makes a conditional sales contract void as to creditors of the vendee who acquire a lien upo.n tl1e· goods, and purchasers without notice.

Even if it was true, tho~gh denied, that the eonditional sales contract was not valid th&t could not be- tal{en advan­tage of except by creditors who acquired a. lien upon the property, or by a purchaser who obtained title to same with­out notice, while it was in p0ssession of Guthrie and Span­glier, the purchasers:, and could not apply to the property after it had been rehrrned by Guthrie and Spangler under th.e- t<Mrms <Of a conditional sales· contract to your petitioner.

5

In .other words, if the property was sold by your p-etitioner to Guthrie and Spangler even with :a verbal oontrnct, that be should retain the title and right tG tln.e possession an.d before the right of any other creditor attached by a lien as required by statute. The tContract between your petitioner and Guthrie .aud Spangler had been fljllly carried out by a redelivery to your petitioner of the property, no creditor w,ould have the right to object thereto. ·

The doctrine which prohibits a deed of trust from be­ing given upon a shifting stock of goods has iiD.O application to the sale of property where the title is reserved, the rights of tbe parties in that instant is governed entirely by ·statute, it is therefore contended that if the conditional sale'S crm­tract is not valid tbe defendants had no cause for complaint, as the property had been returned heft01re their lien attached.

From the final decree entered in this case., record page 67, it will be seen that the Court held that tbe conditional sales contract was not valid and its docketing was illegal basing the Court's !()pinion purely 'On the supposition that the writing did not state when the debt wa:s payable as require(l under Section 5189 of the Code.

The conditional sales contract states that the debt wn:. evidenced by thr~ interest bearing notes payable 30, 60, and 90 days from date.

The wording of the conditional sales ·contraet relative to time of payment of the said debt is as follows:

Title thereto is hereby expressly reserved by .and re­mains vested in the said party of the first part. and shall so remain until the payment in full {lf the sum of $2,463.58, Which .amount is unpaid on the purchase ppce of said mer­chandise and fixtures and· evidenced by three interest bear­ing negotiable notes for the sum ·of $821.16, signed by C. W. Guthrie and I.J. E. Spangler and payable to F. E. N ewcoiD:b 30, 60, and 90 days from date. See page 3 of the record.

The words from date mean from the date of the con­tract and date of the notes, which the total of the tenor of the contract shows were executed at the same time said con­tract and notes being dated August 1, 1923. It would be repeating the same fact to have said notes payable 30, 60, and 90 days from the date, and tnen added that the date of the. notes and contract was August 1, 1923.

6

There could be no other meaning to the words 30, 601

and 90 days from date except the date referred to in the contract which was August 1, 1923. Especially is this true when under the case o.f Liquid Carbonic Company vs. White­head, 115 Va. 586. The Court held in this case that the statute should be given a. liberal construction.

· It is therefore contended that the conditional sales con­tract in this case, which is found on page 2 and 3 of . the record, when compared with Section 5189 of the Code, and which was docketed as required as therein by the Clerk cer­tified in the record, met every requirement of the statute, and gave your petitioner a prior lien upon the fixtures and the Ford truck, even though it did not fix a prior line upon the stock of goods. It was an error on the part of the Court in its final decree to have dismissed your petitioner's bill and denied him of his said lien mentioned aforesaid, and to have · precluded him from procuring personal judgment . against the said Guthrie and Spa:ngler for two reasons. .

First, the sales contract under which the petitioner ac-: quired his lien complied in every respect under the statute which protected him against any subsequent liens. if

Second, for the further reason that if he did not comply with requirements of the statute it would nevertheles·s be binding between the parties, and where the property was I'P.

turned before the rights of the creditors attached by lien to the property, such creditor had no cause for complaint, us his lien entitled qim only to such right as his debtor has in the property at the time of the lien was acquired.

For the foregoing reason your petitioner prays that this Honorable Court will grant an appeal and supersedeas from the final decree entered in this cause, and set aside and reverse the said decree and render such judgment and decree as the said La'v and Chancery Court should have en­tered "in this cause, and he in duty bo~nd will e~er prays, etc.

F. E. NEWCOMB, By HOGE & DARNALL, and

J. E. PALMER, I .

Attorneys for F. E. Newcomb, Petitioner.

We, Thomas M. Darnall, and J. E. Palmer, Attorneys, practicing in the Supreme Court of Appeals of Virginia, do

7

.certify that in our opinion it is proper that the decree of the Law and Chancery Court of the City of Roanoke, in the case of F. E. Newcomb vs. C. W. Guthrie et als., of which the record is here annexed, should be reviewed by the Supreme ·Court of Appeals of Virginia.

Given under our hands this the 2nd day of February, 1926.

THOS. M. DARNALL, J. E. PALMER.

Subscribed and S\VOrn to before me this the 2nd day of February, 1926.

MARGIE ESKINGS, Notary Public.

My commission as Notary expires 7 day of 1\'Iarch, 1929.

Received February 8, 1926.

Appeal and supers~deas awarded. Bond $500.00.

~ M.P. BURKS. ~~

''Exhibit A.''

ROCKET OF RESERVATION OF TITLE TO GOODS AND CHATTELS SOLD UPON CONDITION

. CORPORATION COURT, CITY OF ROANOKE.

When Docketed: Aug 18 . 23 as of the 17 5 P M

Name of Vendor: F. E. Newcomb

Name of Vendee: C. W. Guthrie & L. E. Spangler . .

Date of Contract: Aug. 1st 23

Purchase Price : -2463.58

Description of Property: All Groceries. Dry Goods Notions in Stock at 1616 3rd Ave N. W. 6 Show Cases 2 Pr. Toledo Scales. 1 Howe Refrigerator 1 Slicing Machine 1 McCaskey Register 1 Ameri­can Combi Adding Machine & Cash Regis. 1 Cheese

8

Cutter 2 Paper Cutters l-00 gal oil tank 1 cake xaek, 1 Meat Block, 5 ·Meat Toois, 1 .Steel Safe, 1 Ford Truck eng. No. 507~549 .

Payments: 3 Negotiable notes due 30-60 & .90 days fr.om / date for -821.16 each.

Teste: A Copy.

By

R. J. WATSON, Clerk.

CLYDE MATHERS, Deputy Clerk.

I .

r·-·- .. ' '.. -··-·~-·~·--·· ... ·- - ' . . ·-·~·::..:...... il 9

_.,..,..--....... it.- • __ J

RECORD

Virginia:

Pleas before the Honorable W. W. Mof·fett, Judge of the Court of Law and Chancery of the City of Roanoke., on the .four.th day of December, 1925.

F. E. Newcomb, vs.

C. W. Guthrie, et ala.

Be it .r-emember-ed that heretofol'e, to-wit: (}n the lOth day of November, 1923, the complainant, F. E. Newcomb sued out of the Clerk's office of the Court of Law .and Chan­cery of the City of Roanoke, hls summons in cllancery against .the defendants, C. W. Guthrie, et als., returnable to the sec­ond November, 1923, Rules, which .summons were duly exe­.cuted on some of the defendants a:nd returned t0 said Clerk's ,office, .as .required by law, .and some of the un-served de­fendants, later filed .answers, and ·at the second Nov:eml}er, 1923, Rules, filed his bill,· w-hich is in the wo.r..ds .and figures,· following, to-wit: ·

[21 BILL.

To the Honorable .J.ohn M. Hart .J ud.ge of ·said ·Court:

Your petitioner, F. E. Newcomb, respectfully represents ·and will show unto His Honor that on the 1st day of Au­gust, 1923, your petitioner sold to ·C. W. ·Guthrie and L. E. Spangler his entiTe stock of goods, wares and merchandise and fixtures located a:t No. 1616 3rd Ave., N. W., then known as the F. E. Newcomb Grocery 'Store, and that by reason of said sale the said defendant's became indebted to your petitioner in· the sum of $2,463.58; and,

· That at the time of said sale your petitioner by, a· Con­ditional 'Sales Contract, retained title to the said fixtur-es

10

for the purpose of securing your petitioner the payment of the said $2,463.58, and that as collateral to said contract, the said defendant's executed three (3) notes for the sum of $821.16 each, payable to F. E. Newcomb, 30, 60, and 90 days from date, said Conditional Sales Contract being as follows, to-wit:

''CONTRACT OF SALE OF GOODS AND CHATTELS RESERVING TITLE.''

This contract, made this the 1st day of August, 1923, between F. E. Newcomb, party of the first part, and C. W. Guthrie and L. E. Spangler, parties of the second part:

Witnesseth:-As follows, that is hereby mutually agreed that the party of the first part has this day sold to the

[3] · said parties of the second part, his entire stock of merchandise and fixtures located at No. 1616 3rd Ave.,

N. W., Roanoke, Virginia, to the parties of the second '[>art, and said merchandise and fixtures being described as follows, namely:

''All groceries, dry goods & notions in stock at No. 1616-3rd Ave., N. W.

6 Glass show cases ; 2 pair of Toleda scales ; 1 Howe Refrigerator; 1 Slicing machine; 1 McCaskey Register; 1 American Combination Adding Machine and Cash Register; 1 Cheese Cutter; 2 Paper cutters; 1 {60) gallon Oil Tank; 1· Cake rack; 1 Meat Block; 5 Meat Tools; 1 Steel Safe; 1 Ford Truck Engine No. 5073549.''

And has delivered to the parties of the second part the possession thereof, but the title thereto is hereby expressly reserved by and remains vested in the said party of the first part, and shall so remain until the payment in full of the sum of $2,463.58, 'vliich amount is unpaid on the purchase price of the said merchandise and fixtures, and evidenced by (3) interest bearing negotiable notes for the sum of $821.16 each, signed by C. W. Guthrie and L. E. Spangler, and pay­able to F. E. Newcomb 30, 60, and 90 days from date, said amount being the balance of purchase price of the said goods and merchandise and fixtures.

And it is further agreed and covenanted that in the event of default in the payment of the said sum of notes, or any part thereof, at maturity, the said party of the first part. may, without process of law, take possession of the said

11

goods and chattels, sell the same at public auction, t 4] after first advertising the time, place and terms of sale

for six days in the Public Journal, a newspaper pub­lished in the City of Roanoke, Virginia, and out of the pro­ceeds of said sale pay all cost of said advertisement and sale and all expenses incident thereto ; the amount due and owing on the purchase price of the said goods and merchan­dise and_ fixtures, to the said party of the first part, and the balance, if any, to the said parties of the second part.

Witness the following signatures and seals:

State. of Virginia,

City of Roanoke, to-wit:

C. W. GUTHRIE, , (Seal) L. E. SPANGLER, (Seal) F. E. NEWCOMB. (Seal)

I, Margie Cayton a Notary Public in and for the City and State aforesaid, do certify that C.' W. Guthrie and L. E. Spangler and F. E. Newcomb, whose names are signed to

~ the writing above, bearing date on the 1st day of August, 1923, have this day ackno,vledged the same before me in my city aforesaid.

}ffy commission as Notary expires March 4, 1925.

Given under my hand this 17th day of August, 1923.

MARGIE CAYTON, Notary Publie.

[5] In Clerk's office of the Corporation Court of the City of Roanoke, Virginia, Memorandum filed and dock­

eted 18 as of Aug. 17, 1923, at 5 o'clock P. M. Book No. 42, page 185.

R. J. WATSON, Clerk.

And duly docketed and recorded in the Clerk's office of the Corporation Court for the City of Roanoke, Virginia, on the 17 day of August, 1923, in Conditional Sales Book No. 42, page No. 1~5.

Your petitioner 'vould further show that the said defend­ants have made default of the payment of the said indebted-

12

ness, ·and 1fuat after the said first of said motes become due, the said defendant's acknowledged to -your petitioner their inability to pay said notes and delivered over to your peti­tioner the possession to said fixeures, goods, wares, and mer­chandise, and the keys to the said building and departed therefrom.

your petitioner would further show that immediately after your petitioner taken possession of said merchandise and fixtures, as."he had a right to do under said contract, -and before your petitioner could sell and dispose ,of ·said mer­chandise and fixtures according to the terms of said contract, S. L. Newcomb the owner of said building at No. 1616- 3rd Ave., N. W., put a new and .additional lock on said building . thereby preventing and precluding your petitioner from mak­ing sale of said merchandise and fixtures ; and,

That on the 25th day of October, 1923, the said C. W. Guthrie, after giving your sp·etitioner possession of

[ 6] .said property :according to the terms of said contract, purported to' ~execute a deed of assignment :for the

,benefit of .his .creditors ·by assigning said mer.chandise and fixtures described in said contract to .James P. Hart, Trustee, who has :p-revented and forbidden your petitioner from sell­ing said fixtures and merchandise. ·

Y eur petitioner would further show unto His Honor that only $673.62 has been J>aid on the entiTe indebtedness, and that he has experienced great .difficulty in endeavoring to collect the said balance due, that said balance due and un, paid to your petitioner 1.1nder said contract and on said notes amounts to $1,789.96, with interest thereon from August 16, 1923, and that the said defendant's refuses to make any fur­ther payments ihereon, and that yonr petitioner ihas a right to have the said merc·handise, goods ·and fixtm-es sold to sat-isfy the claim of your petitioner. .

In consideration whereof, your petitioner prays that that said C. W .. Guthrie, L. E. Spangler, S. L. Ne,vcomb and James P. Hart, Trustee, may be made party defendants to this bill and required to answer the same, but . . . . . under oath, the oath being bereby 'vaived, that he may be awarded a personal judgment against tl1e said C. W. Guthrie and L. E. Spangler for the sum of $1.789.96 with interest thereon from the 16th day of August, 1923, that the said 'fixtures and ·merchandise may be sold to satisfy your petitioner's debt, or ·so much thereof as the same 'viii bring, together with the

13

cost of this proceeding; that should said fixtures and mer­chandise sell for less than enough to pay your peti­

[7] tioner's debt, said interest and cost, that your peti-tioner may have a personal judgment against the said

C. W. Guthrie and L. E. Spangler for the balance due; or as his interest may apppear; and that your petitioner may have all such further, other and general relief as the nature of his cause may require. And your petitioner will ever pray.

J. E·. PALMER, p. q. HOGE & DARNELL, p. q.

By

F. E. NEWCOMB.

Counsel.

[8] DEMURRER ·oF C. W. GUTHRIE, S. L. NEWCOMB, AND JAMES P. HART, TRUSTEE.

The defendant, C. W. Guthrie, S. L. Newcomb and James P. Hart, Trustee, come and say that the bill filed in the above entitled suit, pending in this Court, is not sufficient in law.

JAMES P. HART, POINDEXTER & POINDEXTER,

Counsel for C. W. Guthrie, S. L. New­comb and James P. Hart, Trustee.

[9] AMENDED PETITION OF F. E. NEWCOMB.

To the Honorable W. W. Moffitt, Judge of the Law and Chancery Court for the City of Roanoke, Virginia.

Your petitioner, F. E. Newcomb, repsectfully represents that there is now pending in this Court the above styled cause in which he filed his original petition, which is herein again fully relied upon as much so as if fully rewritten here­in, and as amendment to the said petition your petitioner says that the said C. W. Guthrie and the said James P. Hart, Trustee, who are defendants in the original petition filed by your petitioner, haq actual and constructive notice of the lien and conditional sales of your petitioner at the time of the execution of the said deed of trust to the said James P. Hart, Truste~, under which the said F. E. Newcomb claims.

r 14

Your petitioner further claims, alleges, and charges that before the execution of the deed of assignment from C. W. Guthrie to the defendant James P. Hart, Trustee, and be­fore the acceptance on the part of James P. Hart, Trustee, the said James P. Hart, Trustee, had been advised and well

informed by the said C. W. Guthrie that he had pur­[10] chased the fixtures and merchandise from the said

F. E. Newcomb upon 'vhich the said F. E. Newcomb had retained a lien by a conditional sales contraGt; that he had executed three notes for the sum of $821.16 each, pay­able to F. E. Newcomb thirty, sixty, and ninety days front the date of the said conditional sales contract, a copy of said notes being herewith filed marked ''Exhibit A, B, C,'' anc;I ask to be read as part of your petitioner's amended petition, and that one of said notes was past due and by reason of his failure to pay said note that the said F. E. Newcomb had re-entered the premises and taken charge of said goods, fix­tures and merchandise under the terms of said conditional sales contract, and that said goods and fixtures 'vere then being advertised for sale, and that he was seeking the said James P. I-Iart, for legal advice, and the said C. W. Guthrie was advised by the said James P. Hart to make the deed of· assignment, and that the said C. W. Guthrie later returned and executed said deed of assignment.

Your petitioner would further show that the said James P. Hart, Trustee, read the publication published in this city advertising said property and fixtures under the lien of the said conditional sales contract, before the said deed o:f as­signment was executed, said advertisement being herewith filed marked "Exhibit D.'·'

Your petitioner would further sho'v that one S. L. New­comb, one of the defendants in this cause, before the said

deed of assignment was executed consulted with the [111 said .James P. I-Iart, Trustee, at which time the said

.James P. Hart was advised by the said S. L. New­comb that the said F. E. Newcomb had been given posses­sion of the said fixtures and merchandise by the said C. W. Guthrie by virtue of the conditions of the said conditional sales contract.

Your petitioner therefore prays that this may be treat­ed as an amendment to his original petition, aD:d that the said C. W. Guthrie and S. L. Ne,vcomb and James P. Hart, Trustee, be made parties defendants thereto, and required,

f

\

15

tho answer under oath being hereby waived; that all such furt.her, other· and general relief be had as the nature .of his cause may require.

And your petitioner doth ever ray.

$821.16

. E. -NEWCOMB, Petitioner.

Ey ·~ .. E. PALMER, Counsel.

''Exhibit''

Roanoke, Virginia, Aug. 1st 1923

Thirty days after date for value received, we promise to pay to F. E. Newcomb or order without offset, negotiable and payable at The First National Bank of Roanoke at Roanoke, Va., eight hundred and twenty-one 16-100 dollars.

Inst 6% Homestead and all other exemptions 'vaived by the maker and each endorser. If this note is not paid at maturity, and

~ is collected by suit or attorney, the maker and endorsers hereof agree to pay in addition to the amount of this note, five per cent. collection fees. and five dollar's attorney's fees. The maker and endorsers' hereby waive presentment, de­mand of payment, protest and notice thereof, of this note.

C. W. GUTHRIE. L. E. SPANGLER.

Due ............ ~ ....... .

Copy

[13]

$821.16

"Exhibit B.

Roanoke, Virginia, Aug. 1st 19~3

Sixty days after date for value received, we promise to pay to F. E. Newcomb or order without offset, negotiable and payable at The ],irst National Bank of Roanoke at Roanoke, Va.,. eight hundred and twenty-one 16-100 dollars,

. h~6%

Homestead and all other ·exemptions waived by the maker and each endorser. If this note is not paid at maturity, and is collected by suit or attorney, the maker and ~ndorsers

.,

16

hereof agree to pay in addition to the amount of this note, five per cent. collection fees and five dollar's attorney's fees. The maker and endorsers hereby waive presentment, de­mand of payment, protest and notice thereof, of this note.

L. E. SPANGLER. C. W. GUTHRIE,

Due .................... .

Copy

[14]

$821.16

''Exhibit'' C.

Roanoke, Virginia, Aug. 1st 1923

Ninety days after date for value received, we promise to pay to F. E. Newcomb or order without offset,.negotiable and payable at The First National Bank of Roanoke at Roanoke, Va., eight hundred and twenty-one 16-100 dollars.

Inst 6% Homestead and all other exemptions waived by the maker and each endorser. If this note is not paid at maturity, and is collected. by suit or attorney, the maker and endorsers hereof agree to pay in addition to the amount of this note, five per cent. collection fees and five dollar's attorney's fees. The maker and endorsers hereby waive presentment, de­mand of payment, protest and notice thet:eof, of this note.

C. W. GUTHRIE, L. E. SPANGLER.

Due .. : ................. .

Copy

[15] "Exhibit" D.

Notice of Public Sale.

By virtue of a certain conditional sales contract dated August 1, 1923, between F. E. Newcomb and C. W. Guthrie and L. E. Spangler, I shall on the 3rd day of November, 1923, at 2 o'clock P. M. on that date, sell at public auction the entire stock of goods, wares and merchandise, and fix­tures, described in said conditional sales contract located at 1616 Loudon A venue, N. W. R.oanoke, Va. Said stock con-

17 ' ·;

sists of dry goods, notions and all kinds of groceries. The fixtures are as follows : 6 g~ass show cases, 2 pair

Toledo scales, 1 Howe refrigerator, 1 slicing machine, 1 Mc­Caskey register, 1 American combination adding machine and cash register, 1 cheese cutter, 2 paper cutters, 1 60-gal-· Ion oil tank, 1 cake rack, 1 meat block, 5 meat tools, 1 steel safe, and 1 Ford truck in good condition. ·

.The stock and fixtures will be sold separately. This is a good opportunity for some one to get a bargain. Terms of sale : Cash. Sale to be made at 1616 Loudon on N. W.

3. E. PALMER, p. q .

F. E. NEWCOMB, T~ien Creditor. 10-20-2w.

. [16] PETITION OF WILSON & COMP AN:Y ET ALS.

To the Honorable W. W. Moffett, Judge of said ·court.

Humbly complaining, your petitioners, Wilson and Com­pany, Incorporated, William Schulderberg-T. J. Kurdle Com­pany, Incorporated, F. B. Thomas and Company, Incorpo­rated, Roanoke Paper Company, Incorporated, Caldwell­Sites Company, Incorporated, Peerless Candy Company, In­corporated, Loose-Wiles Biscuit Company, Incorporated, and Lindsey-Robinson and Company, Incorporated, would re­spectfully show unto the Court the following statement of factA:

1 .

-I--.

That .on August 1, 1923, F. E. Newcomb sold and de1iv­_(3red to C. W. Guthri.e and L. E. Spangler, partners trading as Guthrie and Spangler, a certain· shifting stock of mer­chandise, tog-ether with the fixtures, then located in store­room at 1616 Loudon (or Third) A venue, N. W., Roanoke, Virginia, for the purchase price of $2,463.58 evidenced by the three (3) certain interest-bearing, negotiable notes, exe­cuted by 'the said C. W. Guthrie and L. E. Spangler, and

payable in thirty (30), sixty (60) and ninety (90) days [17] after date to the said F. E. Newcomb, the said F. E.

18

N·ewcomb attempting to reserve a chattel mortgage ·or conditional contract of sales on said shifting stock of mer­chandise and fixtures therein more· specifically described, ' which will be more fully hereinafter referred to, said shift­ing stock of merchandise and said fixtures being delivered into the physical possession of the said C. W. Guthrie and L. ·E. Spaigler, partners trading as Guthrie and Spangler-

-TI-

Your petitioners would further show unto the Court that the said C. W. Guthrie and L. E. Spangler, partners trading as Guthrie and Spangler, contracted debts with your peti- , tioners in the ·following amounts, to-wit:

(a) To your petitioner, Wilson and Company, Incor­porated, in the sum of $55.00, for goods, wares and merchan­dise sold to said Guthrie and Spangler, which said sum of $55.00 remains wholly due and unpaid, with interest there­on from the 18th day of September, 1923, which said amount was duly Jisted and returned for taxation as by the statute in such case made and provided.

(b) To your petitioner, William Schulderberg-T. J. Kurdle Company, Incorporated, in the sum of $153 07, for goods, wares and merchandise sold to said Guthrie and Span­gler, which said sum of $153.07, remains wholly due and unpaid, with interest thereon from the 7th day of Septem­ber, 1923, which said amount was duly listed and returned for taxation as by the statute in such case made and pro­vided.

[18] (c) To your petitioner, F. B. Thomas and Company, Incorporated, in the sum of $151.74, for goods, wares

and merchandise sold to said Guthrie and Spangler, which said sum of $151.74 remains wholly due and unnaid, with interest th~reon from the 13th day of August, 1923, which said amount was duly listed and returned for taxation as by the s~atute in such case made and provided.

(d) To your petitioner, Roanoke Paper Company, In­corporated, in the sum of $~0.91, for goods, wares and mer­chandise sold to said Guthrie and Spangler. which Aaid sum of $50.91 remains wholly due and unp~id, with interest there-

I

---------

19 . ., -

. .

. on from the 30th day of 4ugust, 1923, which said amount was duly listed and returned for taxation as by the statute in such case made and provided.

(e) To your petitioner, Caldwell-Sites Company, In­corporated, in the sum of $31.30, for goods, wares and mer­chandise sold to said Guthrie and Spangler, which said sum of $31.30 remains wholly' due and unpaid, with interest the:re­on from the 26th .day of September, 1923, which said amount was duly listed and returned for taxation as by the statute in such ca.se made and provided.

(f) To your petitioner, Peerless Candy Oompany, In­corporated, in the sum of$119.96, for goods, wares and mer­chandise sold to said Guthrie and Spangler, which said sum

·of $119.96 remains wholly due and unpaid, with interest thereon from the 1st day of October, 1923, which said

[19]- amount was listed and returned for taxation as by the Rtatute in such case made and provided.

(g) To your petitioner, Loose-Wiles Biscuit Company, Incorporated, in' the sum of $21.71, for goods, wares ·and merchandise sold to said Guthrie and Spangler, which said sum of $21.71 remains wholly due and unpaid, with interest thereon from the 6th day of August, 1923 ; and in the fur­ther· sum of $31.48, for goods, wares and merchandise sold and delivered unto the said C. W. Guthrie, which said sum of $31.48 remains wholly unpaid, with interest thereon from the 26th day of September, 1923, which said amounts have been duly listed and returned for taxation as by the statute in such case .made and provided.

(h) To your petitioner, Lindsey-Robinson and Com­pany, Incorporated, in the sum of $79.93, for goods, wares and merchandise sold to said Guthrie and Spangler, which said sum of $79.93 remains wholly due and unpaid, with in­terest thereon from the 8th day of September, 1923, which said amount has been duly listed and returned for taxation as by the statute in such case made and provided.

-III-·

Your petitioners would further show unto the Court that they are advised and, therefore, allege and charge,. that the

20

said L. E. Spangler, partners, as aforesaid with the said C. W. Guthrie, did on the .... day of ............. , 1923, seize and appropriate unto himself numerous and sundry as-

sets belonging to said Guthrie and Spangler and a b­[20] scond p.nd absent himself from the State of Virginia,

and the whereabouts of the said L. E. Spangler have continuously from said . . . . . . day of ................... , 19 ... , remained unknown to the said C. W. Guthrie . or to your petitioners.

-IV-

Your petitioners would further show unto the Court that on the 25th day of October, 1923, the said C. W. Guthrie, surviving partner of himself and the said L. E. Spangler, partners· formerly trading as Guthrie and Spangler, executed and delivered unto James P. Hart, Trustee, a certain deed of assignment, conveying all of the shifting stock of goods, wares and merchandise, open accounts, bills receivable, fix­tures, and all the assets of every nature 'vhatsoever in the conduct of said business at 1616 Loudon (or Third) Ave­nue, N. W., in trusi.to ~ecure the creditors of the said Guth­rie and Spangler and the said ,James P. Hart, Trustee, as aforesaid, is now administering the said trust fund.

-V-

Your petitioners would further show unto the Court that at the Second November Rules, 1923, the said F. E. New­comb filed his certain original bill in this hqnorable Court against the said C. W. Guthrie and L. E. Spangler, reciting the execution ·and delivery of said chattel mortgage or con­tract of conditional sale, and praying that said shiftin~ stock of good·s, together with the fixtures described in said con­tract of conditional sale might be sold and the proceeds

therefrom derived applied to the satisfaction of his · [21] alleged indebtedness of $2,462.58 against the said C.

W. Guthrie and L. E. Spangler, a copy of said con­tract of conditional sale being duly filed as an exhibit with said original bill, the said C. W. Guthrie. L. E. Spangler, James P. Hart. Trustee, and S. L. Newcomb (who your peti­tioners are advised and. therefore. allege and. charge, was a creditor of the said C. W. Guthrie and L. E. Spangler,

21

partners trading as Guthrie and Spangler, and of the said C. W. Guthrie, the surviving partner of the said firm of Guthrie and Spangler, for the rental of premises No. 1616 Loudon (or Third) Avenue, N. W.), being the parties de­fendant in said bill.

-VI-

Your petitioners would further show unto the Court that on January 11, 1924, the said C. W. Guthrie, S. L. Newcomb .and James P. Hart, Trustee, filed their demurrer to said bill in said cause, and this honorable Court, after hearing argument of counsel for the respective parties, and after maturely considering said demurrer, sustained the same, and by decree entered in this cause on the 17th day of May, 1924, dismissed said bill.

-Vll-

Your petitioner.s would further show unto the Qonr.t that on the 24th day of May, 1924, said F. E. Newcomb, by leave of Court, filed his supplemental or amended bill in this cause, in which it was specifically alleged that the said James P. Hart, Trustee, had personal knowledge of the execution and delivery of said chattel mortgage or contract of condi-

tional sale between the said F. E. Newcomb and the [22] said C.. W. Guthrie, but no allegation is made in said

amended bill a·s to what lrnowledge, if .any, the said S. L. Newcomb had of the execution and delivery of said chattel mortgage or contract of conditional sale.

~VII-

Your petitioners would further show unto the Court that they are creditors of the said C. W. Guthrie and L. E. Span­gler, as above recited; that they had no Imowledge of the execution and delivery of said chattel mortgage or said con­tract of conditional sale between the said F. E. Newcomb and the said Guthrie and Spangler: that said contract of conditional sale between the said F. E. Newcomb and the said C. W, Guthrie is wholly invalid and void as to your peti­tioners' debts, since:

(a) Said contract of conditional sale was, as will more

specifically appear from an inspection of the same, not in­herently capable of being docketed, in that no date is fixed therein from which it may appear when the notes given for the deferred purchase money are to be paid.

(b) The description~ of the fixtures in said contract of conditional sale, as will more clearly appear from an inspec­tion of the same, are so indefinite and insufficient they af­forc1€'r1 ,..n n·otice as required by the statute, by reason of which tuere was no constructive notice ·afforded your peti­tioners ; and

(c) Said contract of conditional sale purported to con­vey a shifting stock of goods, to which extent it was a nul­

lity, and being a nullity in part, it became a nullity [23] in toto; by reason of all of which said contract of con-

ditional sale or chattel mortgage was inherently in­capable of being docketed, and no notice, actual or construc­tive, has been afforded your petitioners of the lien attempted to be reser'{Ted by the said F. E. Newcomb on said fixtures so sold to said Guthrie and Spangler, and your petitioners havP. a right to come into this Court and file their petition ~n this cause anJ have this Court decree that said chattel mortgage or contract of conditional sale between the said F. E. Newcomb and said Guthrie and Spangler is a nullity, in so far as your petitioners' debts are concerned; and they further have the right to have said articles so conveyed in said contract of conditional sale sold and the proceeds there­of applied to the satisfaction of your petitioners' debts, with interest and costs.

In consideration whereof, your petitioners pray that the said F. E. Newcomb, C. W. Guthrie, James P. Hart, Trustee, L. E. Spangler, and S. L. Newcomb may be made parties de­fendant to this petition and required to answer the same, but answer under oath is hereby' expressly waived; that proper process may issue; that all proper orders and ac­counts may be· directed and taken; that said purported con­tract of conditional sale between the said F. E. Newcomb and said C. W. Guthrie and L. E. Spangler, partners for­merly trading as Guthrie and Spangler, may he declared in-

valid and of no binding force and effect; that said [24] articles therein conveyed may be sold and. the pro­

ceeds derived therefrom, as well as any other assets

l \,

23

belonging to the said C. W. Guthrie and ·said L. E. Span­gler, partners formerly trading as Guthrie and Spangler, or to the said C. W. Guthrie, coming into the hands of the said James P. Hart, Trustee, may be applied toward the pay­ment of your petitioners' debts, with interest.and costs, and that all such other, further and general relief may be af­forded your petitioners as the nature of their case may re-qnare. ·

And your petitioners will ever pray, etc.

WILSON AND COMPANY, INCORPORATED, WILLIAM SCHLUDERBERG-T. J. KURDLE CO., INc. F. B. THOMAS AND COMPANY, INCORPORATED, ROANOKE pAPER COMPANY, INCORPORATED, CALDWELL-SITES COMPANY, INCORPORATED, PEERLESS CANDY COMPANY, INCORPORATED, I

LOOSE-WILES BISCUIT COMPANY, INCORPORATED, LINDSEY-ROBINSON AND COMPANR, INCORPORATED.

By POINDEXTER & POINDEXTER, Attorneys.

[25] ANSWER OF JAMES P. HART, TRUSTEE.

Your respondent, James P. Hart, Trustee, reserving unto himself all just exceptions to the bill and amended bill

' filed against him and others in the above entitled cause, for answer to said bill and amended bill, or so much thereof as he is advised it is material he should answer, answers, and says:

(1) That he admits that on August 1, 1923, F. E. New­comb sold and delivered unto C. W. Guthrie and L. E. Span­gler his entire stock of goods and fixtures at 1616 Third A venue, N. W., the said F. E. Newcomb attempting to re­tain legal title to the shifting stock of goods and fixtures sold and delivered unto the said C. W. Guthrie and L. E. Spangler by having the said C. W. Guthrie and L. E. Span­gler execute and deliver to him, the said F. E. Ne,vcomb, the

, purported contract of conditional sale 'filed as an exhibit with said bill, but your respondent alleges and charges that the same is a nullity, was inherently incapable of being docketed, by reason of which no lien was reserved by the said F. E. Newcomb to the said shifting ·stock of goods and fixtures

, . 24

sold and delivered unto the said C. W. Guthrie and L. E. Spangler. Your respondent further admits that the pur­chase price of said shifting stock of goods and fixtures men­tioned in said purported contract of conditional sale was the sum of $2,463.58, evidenced by the three ( 3) notes alleged to

have been given by the said C. W. Guthrie and L. E. [26] Spangler, and said F. E. Newcomb, by reason of the

invalidity of said contract of conditional sale, instead of becoming a lien creditor of the said C. W. Guthrie and L. E. Spangler, becomes a general creditor only.

(2) Your respondent, further answering said bill, de­nies that the said F. E. Newcomb had any right to p11ysi­cally seize and take possession of said shifting stock of ,goods and said fixtures, as claimed in said bill, and admits that the said S. L. Newcomb put a new and additional lock on said building in 'vhich said goods and fixtures were lo­cated, for the very purpose of denying unto the said F. E. Newcomb the right claiined by him to physically seize and appropriate said goods and fixtures to his own use.

(3) Respondent further admits that C. W. Guthrie on the 25th of October, 1923, executed and delivered unto him a general deed of assignment for the benefit of his creditors, which said deed of assignment 'vas duly recorded in the Clerk'Et office of Roanoke City, Virginia, and pursuant to the terms of the same your respondent became vested wlth the legal title of said shifting stock of goods and fixtures for the benefit of the creditors of the said C. W. Guthrie and L. E. Spangler, partners trading as Guthrie and Span­gler, and the said C. W. Guthrie successor in title to the said Guthrie and Spangler, and your respondent alleges it became his legal duty to prevent the said F. E. Newcomb from physically seizing and apnropriating said merchandise and fixtures as alleged in said bill.

(4) Your respondent, further answering said hill, de­nies that he had either substituted or actual notice of the

terms and conditions of the purported sale between .[27] the said F. E. Newcomb and C. W. Guthrie and L. E.

Spangler of the shifting stock of merchandise and :fixtures as alleged in said amended bill filed in this cause

' ' and calls for strict proof of the s11me.

25 -~ .. ·---

( 5) Your respondent, for further answer to said origi­nal and amended bill filed in this cause, denies each and every allegation of. the same not hereinbefore admitted, and calls for. st_rict proof of the same.

And now, having fully answered, your respondent prays to be hence dismissed with his reasonable costs in this be­half expended.

JAMES, P. HART, · Trustee.

JAMES P. HART. By POINDEXTER & POINDEXTER,

Attorneys.·

[28] ANSWER OF JAMES P. HART, TRUSTEE, TO PETITION OF WILSON AND COM-

PANY ET ALS.

~ Your respondent for answer of said petition, or so much thereof as he is advised he should answer, answer and says :

-1-

Your respondent admits the truthfulness of the alte~~,.. tion·as set forth in paragraph one of said petition.

-2-

Your respondent is not advised as to the actual amounts due and owing said petitioners as claimed in paragraph two of their petition and calls for proof of the same.

-3-

Your respondent likewise admits the truthfulness of the allegation as set forth in paragraph three of said petition.

Your respondent likewise admits the truthfulness of the allegation as set forth in paragraph four of said peti~on.

r 2d -, 0 ...... ..:-_. -~

-5-

Your respondent likewise admits the truthfulness of the allegation as set forth in paragraph :five of the petition.

[29] -6-

Your respondent likewise admits the truthfulness of the allegations as set forth in paragraph six of said petition.

-7-

Your respondent admits the truthfulness of paragraph seven of said petition in so far as it alleges the filing of a supplemental or amended bill by F. E. Ne,vcomb, but your your respondent denies any personal knowledge on the part of himself of the execution and delivery of the chattel mort­gage or contract of conditional sale between the said F. E. Newcomb and C. W. Guthrie, as alleged in. said petition, and calls for strict proof of the same.

-8-

Your respondent likewise admits the truthfulness of the allegations as allegeq in paragraph eight of said petition.

Now having fully answered, your respondent prays to be himself dismissed with his reasonable costs in this be­half expended.

JAMES P. HART, Trustee.

JAMES P. HART~ By POINDEXTER & POINDEXTER,

Counsel.

,[30] ANSWER OF F. E. NEWCOMB TO PETI-TION OF WILSON AND CQM-

P ANY, ET ALS.

The answer of F. E. Newcomb to a petition filed in the above styled cause by Wilson & Company, Inc., and et als., for answer thereto, or to so much thereof as he is advised

o-

H is right and proper that he should answer, answers and says:

That he knows nothing of the indebtedness of the said C. W. Guthrie and L. E. Spangler to the said Wilson & Co., Inc., and the other allegecl creditors whose names are signed to the said petition, but he does know that the said C. W. Guthrie and L. E. Spangler was not indebted to the said petitioners at the time of' executing the said conditional sales contract to yqur respondent F. E. Newcomb, because the said conditional sales contract was executed and delivered to your respondent by the said Guthri~ and Spangler be­fore they took charge of said business, and before any goods were purchased and delivered in the name of the said Guth­rie and Spangler, that your respondent was the owner and in possession of the business and fixtures which he sold to the said Guthrie and Spangler up the time the said condi-

tional sales contract was made; that the said sale was -[31] made simultaneously with the said conditional sales

contract, and that the said conditional sales contract was of record in the Clerk's office of the Corporation Court for the City of Roanoke at the time the said ·petitioners ex­tended credit to the said Guthrie and Spangler, if credit was. extended at all.

It is alleged in said petition that the said F. E. New­comb alleges in his bill in this cause that James ·P. Hart, Trustee, had personal knowledge of the execution of said conditional sales contract, but no allegation is made· in said bill as to what knowledge S. L. Newcomb had of said con­ditional sales contract.

The respondent hereby makes reference to the amended bill in said cause, which does not only allege that the said S. L. Newcomb had knowledge of said conditional sales con­tract, but further alleges that the said S. L. Newcomb ad­vised the said James P. Hart, Trustee, of the existence of the said conditional sales contract.

The said petitioners have prayed for privilege from this Court to come into this honorable Court and show that said conditional sales contract is invalid and is a nullity, and to have the said fixtures sold and the proceeds thereof applied on their debts.

This respondent does not deny the right of said peti­tion-ers to try to prove the things for which they have prayed for the privilege of this Court to do, however, this respon-

dent alleges and charges that the said conditional sales [32] contract' was drawn in due form, and properly exe-·

cuted, by virtue of which was admitted to record; and that $1,789.96 'vhich is still owing and unpaid as alleged in the original bill in this cause, represents purcliase money on said fixtures; therefore, this respondent has relied and shall continue to reliy and shall continue to rely upon the law made and provided for his protection.

Your respondent answers and says further, that this Court could not ignore the debt of your resp·ondent and have the assets of the said Guthrie and Spangler applied wholly on the debts of said petitioners, because the said assets were conveyed to the said James P. _Hart, Trustee, in trust for the benefit of the creditors of the said C. W. Guthrie and included your respondent as one of said creditors, and that his claim is more than the total of all other claims combined.

Your respondent for further answer to said petition de­nies each and every allegation of the same not hereinbefore admitted, and calls for strict proof of same, and now, hav­ing fully answ~red, your respondent prays to be hence dis­missed with his reasonable cost in this behalf expended.

HOGE & DARNALL, and J. E. PALMER,

Attys.

F. E. NEWCOMB . • J. E. PALMER,

By .J. E. PALMER, CounseL

[33] AMENDED PETITION OF WILSON' AND COMPANY, INCORPORATED, ET ALS.

Your petitioners, Wilson and Company, Incorporated,. William Scl}ulderberg-T. J. Knrdle Company, Incorporated,

_F. B. Thomas and Company, Incorporated, Roanoke Paper ~ Company, Incorporated, Caldwell-Sites} Company, Incorpo­rated, Peerless Candy Company, Incorporated, Loose-Wiles Biscuit Company, Incorporated, and Lindsey-Robinson and Om:n:pany, Incorporated, would respectfully show unto the Court the following statement of facts:

-I-

That on the 19th day of March, 1925, your petitioners

29

filed their petition in the above entitled suit pending in this Court, on which said petition process duly issued and the same has matured for hearing as to all parties defendant named therein except L. E. Spangler, process being return­ed "not fo11nd" as to him.

-II-

Your petitioners would further show unto the Court that relying upon each and every allegation of their petition filed in this cause they, in addition thereto, allege the following facts:

(a) That your petitioner, Wilson and Company, Incor­porated, did on the 10th day of ,June, 1925, obtain before the Honorable Beverley Berkeley, trial justice for the City of

Roanoke, Virginia, in an action against the said C. [34] W. Guthrie and L. E. Spangler trading as Guthrie &

Spangler a judgment against the said C. W. Guthrie for the amount due and owing by the said Guthrie and Spangler, viz: $55.00, with interest thereon from September

t. 18, 1923., and costs $2.20, process as to L. E. Spangler being returned "not found" on which an execution issued on the lOth day of June, 1925, for said sum, with interest and costs, which execution did on the lOth day of June, 1925, go into the hands of J. C. Wingfield, high constable for the city of Roanoke, Virginia, and is now in the hands of the said J. C. Wingfield, constable, ~s aforesaid, and is a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. E. Newcomb to the said Guthrie and Spangler in the bill and proceedings mentioned.

(b) That your petitioner, William Schluderberg-T. J. Kurdle Company, Incorporated, did on the lOth day of June, 1925, obtain before the Honorable Beverley Berkeley, trial justice for the City of Roanoke, Virginia, in an action against the said C. W. Guthrie and L. E. Spangler trading as Guth­rie and Spangler a judgment against the said C. W. Guthrie

· for the amount due and owing by the said Guthrie and Span­gler, viz: $153~07, with interest from September 7, 1923, and costs $2.20, process as to L. E. Spangler being returned ''not fqund'' · on which an execution issued on the loth day of June, ·1925, for said sum, with interest and costs, wlrich exe-

30

cution did on the lOth day of June, 1925, go into the hands of J. C. Wingfield, high constable for the City of

[35] Roanoke, Virginia, and is now in the hands of the said J. C. Wingfield, constable, as aforesaid, .and is

a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. E. N ewcoDl.b to the said Guthrie and Spangler in the bill and proceedil!gs mentioned. ·

(c) That your petitioner, F. B. Thomas and Company, Incorporated, did on the lOth day of June, 1925, obtain be­fore the Honorable Beverley Berkeley, trial justice for tl1e City of Roanoke, Virginia, in an action against the said C.·

· W. Guthrie and L. E. Spangler partners as Guthrie & Span· gler a judgment against the said C. W. Guthrie for the amount due and owing by the said Guthrie and Spangler, viz: $151.74, with· interest thereon from August 13, 1923, , and costs $2.20, process as to L. E. Spangler being returned "not found" on which an execution issued on the lOth day of June, 1925, for said sum, with interest and costs, which execution did on the lOth day of June, 1925, go into the hands of J. C. Wingfield, high constable for the City of ' ·· Roanoke, Virginia, and is no'v in the hands of the said J. C. Wingfield, constable, as aforesaid, and is a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. W. Newcomb to the said Guthrie and Spangler in the bill and proceedings men­tioned.

(d) That your petitioner, Roanoke Paper Company, In­corporated, did on the lOth day of June, 1925, obtain be­fore the Honorable Beverley Berkeley, tr~al justice for the City of Roanoke, Virginia, in an action against the said C. W. Guthrie and L. E. Spangler, partners trading as Guth­rie and Spangler a judgment against the said C. W. (}uthrie

for the amount due and owing by the said Guthrie [36] and Sp~ngler, viz: $50.91, with interest thereon from

February 3, 1923, and costs, ·$2.20, process as to L. E. Spangler being returned "not found" on which an execution issued on the lOth day of .June, 1925, for said sum, with in­terest and costs, which execution did on the 1Oth day of June, 1925, -go into the hands of J. C. Winfi.:field, high constable for the City of Roanoke, Virginia, and is now in the hands

31

of the said J. C. Wingfield, constable, as aforesaid, and is a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. E. Newcomb to the said Guthrie and Spangler in the bill and proceedings mentioned.

(e) That your petitioner, Caldwell-Sites Company, In­corporated, did on the lOth day of June, 1925, obtain before the Honorable Beverley Berkeley, trial justice for the City of Roanoke, Virginia, in an action against the said C. W. Guthrie and L. E. Spangler, partners as Guthrie and Span­gler, a judgment against the said C. W. Guthrie for the amount due and owing by the said Guthrie and Spangler, viz: $31.31, with interest thereon from September 26, 1923, and $2.20 costs, process as to L. E. Spangler being returned ''not found'' on which an execution issued on the lOth day of June, 1925, for said sum, with interest and costs, which execution did on the lOth day of J nne, 1925, go into the hands of J. C. Wingfield, high constable for the City of · Roanoke, Virginia, and is now in the hands of the said J. C. Wingfield, constable, as a~oresaid, and is a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the ·fixtures sold by the said F. E. Newcomb- tq

the said Guthrie and Spangler in the bill and proceed­[37] ings mentioned.

(f) That your petitioner, Peerless Candy Company, Incorporated, did on the lOth day of June, 1925, pbtain be­fore the Honorable Beverley Berkeley, trial justice for the City of Roanoke, Virginia, in an action against the said C. W. Guthrie and L. E. Spangler, partners as Guthrie and Spangler, a judgment against the said C. W. Guthrie, for the amount due and owing by the said Guthrie and Span­gler, viz: $119.96, with interest thereon from August 1, 1923, and costs $2.20, process as to L. E. Spangler being returned ''not found'' on which an execution issued on the lOth day of June, 1925, for said sum, 'vith interest and costs, which execution did on the lOth day of June, 1925, go into the hands of .T. C. Wingfield, high constable for the City of

. Roanoke, ·virginia, and is now in the hands of the said J. C. Wingfield, constable, as aforesaid, and is a lien on any funds in the hands of James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. E. Newcomb

,..... 32

to the said Guthrie and Spangler in the bill and proceed­ings mentioned.

(g) That your petitioner, Loose-Wiles Biscuit Com­pany, Incorporated, did on the lOth day of June, 1925, ob­tain before the Honorable Beverley Berkeley, trial justice for the City of Roanoke, Virginia, in anaction against the said C. W. Guthrie and L. E. Spangler, partners as Guth­rie a.nd Spangler, a judgment against the said C. W. Gnth-: rie, for the amount due and owing by the said Guthrie and Spangler, viz: $53.19, with interest thereon from Septembel' 26, 1923, and $2.20 costs, process as to L. E. Spangler be­ing returned "not found" on which an execution issued on the 10th day of June, 1925, for said sum, with interest and costs, which execution did on the 10th day of June, 1925, go

into the hands ·of J. C. Wingfield, high constable fo~ [38] the City of Roanoke, Virginia, and is now in the handn

of the said J. C. Wingfield, constable, as aforesaid, and is a lien on any funds in the hands {)f James P. Hart, Trustee, by reason of the sale of the fixtures sold by the said F. E. Newcomb to the said Guthrie and Spangler in the bill and proceedings mentioned. ·

(h) That your petitioner, Lindsey, Robinson and Com­pany, Incorporated, did on the lOth day of June, 1925, ob­tain before the Honorable B~verley Berkeley, trial justice for the City of Roanoke, Virginia, in an action against the said C. W. Guthrie and L. E. Spangler, partners as Guthrie and Spangler, a judgment against the said C. W. Guthrie for the amount due and owing· by the said Guthrie and Span­gler, viz: $77.93, with interest thereon from September 26, 1923, and costs $2.20, process as to ·L. E. Spangler being re­turned ''not found'' on which an execution issued on the lOth day of tTune, 1925, for said sum, with interest and costs, which execution did on the lOth day of J nne, 1925, go into the hands of J. C. Wingfield, high constable for the City of Roanoke, Virginia, and is now in the hands of the said J. C. Wingfield, constable, as aforesaid, and is a lien on any funds . in the hands of James P. Hart, Trustee. bv reason _of the sale of the fixtures sold by the said F. E. Newcomb to the said Guthrie and Spangler in the bill and proceedings mentioned. ·

In consideration of all of which your petitioners pray

33

that the said F. E. Newcomb, C. W. Guthrie, James P. Hart, Trustee, L. E. Spangler, and S. L. Newcomb, may be made parties defendant to this petition and required to answer the same, but answer under oath is hereby expressly waived;

that proper process may issue; that all proper orders [39] and accounts may be directed and taken; that the

purported contract of conditional sale between the said F. E. Newcomb and said C. W. Guthrie and· L. E. Span­gler, partners formerly trading as Guthrie and; Spangler, may be declared invalid and of no binding force and effect; that said articles therein conveyed may be sold and the pro­ceeds derived therefrom, as well as any other assets belong­ing to said C. W. Guthrie and L. E. Spangler, partners for­merly trading as Guthrie and Spangler, or to the said C. W. Guthrie, coming into the hands of the said James P. Hart, Trustee, may be applied towards the payment of your petitioners' debt, with interest and costs; and that all such other, further and general relief may be afforded your peti­tioners as the nature of their case may require.

And your petitioners will ever pray, etc.

t WILSON AND COMPANY, INCORPORATED, WILLIAM SCHLUDERBERG-T. J. I{URDLE CO., INc. F. B. THOMAS AND COMPANY, INCORPORATED, ROANOKE pAPER COMPANY, INCORPORATED, CALDWELL-SITES COl\fPANY, INCORPORATED, PEERLESS CANDY COMPANY, INCORPORATED, I.JOOSE-WILES BISCUIT COMPANY, INCORPORATED, LINDSEY-ROBINSON AND COMPANR, INCORPORATED.

By POINDEXTER & POINDEXTER, Attorneys.

[40] DEPOSITIONS.

Deposition of F. E. Newcomb taken before me, Mary B. Plunkett, a Notary Public in and for the City of Roanoke, State of Virginia, by consent of all parties in interest, at the law office of E. W. Poindexter, Anchor Buildin~, Roan-

. oke, Va., on October 16, 1925, between the hours of 9 a. m. and 6 p. m. to be read as evidence in behalf of th.e plaintiff in a certain action pending in the Law and Chancery Court of the Citv of Roanoke, wherein said F. E. Newcomb is plain­tiff and C. W. Guthrie, et als., are defendants.

...... ~ 34

F. E. NEWCOMB.

F. E. Newcomb, a witness of lawful age, being first dnly sworn, testified ·as follows:

Direct Examination.

By Mr. Palmer: Q. You are the plaintiff in a suit filed in the Law and

Chancery Court vs. C. W. Guthrie and L. E. Spangler and S. L. Newcomb and James P. Hart, Trustee!

A. Yes, sir. Q. Were you once the owner of a stock of goods and

fixtures in the City of Roanoke T A. Yes, sir. Q. Did you sell your stock of goods and fixtures T A. Yes, sir. Q. To whom did you sell! A. Guthrie & Spangler. Q. Is that C. W. Guthrie and L. E. Spangler! A. Yes, sir.

Q. Did you retain a conditional sales contract to se­[ 41] cure a part of the purchase money?

A. Yes, sir. Q. Mr. Newcomb, I hand you here your bill which you

filed in the Law and Chancery Court in this matter in which there is purported to be a copy of the conditional sales con­tract· which you retained. I will ask you to look at this be­ginning at the pencil mark reading down and see whether or not that is a copy of your conditional sales contract.

(Hands witness bill.)

A. Yes, sir. Q. This copy incorporated in your bill recites that in

the Clerk's office of the C.orporation Court of the City of Roanoke, Va., memorandum filed and docketed August 18th, as of August 17th, 1923, at 5. o'clock P. M., Book No. 421, page 185, did you personally deliver your conditional s&les contract to the Clerk's office for the purpose of having it docketed?

A. Yes, sir. Q. Do you still retain the nriginal of that conditional

sales contract t ·

35

A. Yes, sir. Q. This contract recites that there was $2463.58 unpaid

and owing you anq was evidenced by three notes for the sum of $821.16 each payable to F. E. Newcomb thirty, sixty and ninety days from date, I will ask you what amount has been paid on these notes 7

A. There has been a credit on that, I do not just re­member how much it was, something around a thousand dol­

lars I think. [42] Q. Are those the same notes that you delivered

to mef A. Same notes, yes, sir. Q. You state in your bill in this matter that the notes

have a credit of $673.62, is that correct? A. I have forgotten. It might be that. Paid on the

notes, it. might be that. There is a credit on them, I have forgotten the amount, but it is shown on the back of the note.

Q. Those n·otes were interest bearing notes, I believe? A. Yes, sir. Q. No other credits that you know of that should be

placed on the notes f A. No, sir. Q. Mr. N ew·comb, after this contract was executed and

recorded, did Guthrie and Spangler default in the payments t A. Yes, sir. Q. One of the defendants, James P. Hart, Trustee, has

made answer in this matter in which he admits that on Au­gust 1, 1923, you made the sale as is recited in the condi-

. tional sales contract, and further admits that you attempted to retain legal title to the shifted stock of goods and the fixtures sold and delivered to the said C. W. Guthrie and L. E. Spangler by having the said C. W. Guthrie and L. E. Spangler deliver to you the purported contract with condi­tional s.ale; but he alleges and charged that the same was 'a nullity by reason of which no lien was reserved· to you to

the shifted stock of goods and fixtures sold and de­[ 43] livered to said Guthrie and Spangler and he further

admits that the present purchase price of the shift­ing stock of goons and fixtures mentioned in said purported contract of conditiqnal sale was for the sum of $2,463.58, evidenced bv three notes alle~ed to have been given by the said C. W. Guthrie and· L. 'E. Spangler~ However, he alleges that by reason of the invalidity of the said contract of con-

I 3€

ditional sale, instead of you becoming o lien creditor of the said C. W. Guthrie and L. E. Spangler, you became a gen­eral creditor only, did you do everything connected with your contract as required by law in order to perfect your lien on the fixtures t-

A. Yes, sir.

By Mr. Poindexter: The foregoing question and answer objected to on the ground that the witness is asked for a legal conclusion Y

Q. Mr. James P. Hart, Trustee, in this answer, fur­ther answers and says that you had no legal right to physi­cally seize and take possession of the shifting stock of goods and fixtures as claimed in your bill. I will ask you, Mr. New­comb, how did you obtain possession to the fixtures and the stock of goods that was in the store building and 'vhich you claimed a lien on T

A. Mr. Guthrie he told me he could not pay me for them, and gave me the keys and told me to take them over. He asked me to do so at least fifteen days before I did.

Q. You say Mr. Guthrie gave you the keys and asked you to take possession, did you not see Mr. Spangler?

A. They had dissolved partnership; Mr. Spangler had [ 44] sold to him.

Q. To Guthrie 1 A. Yes, sir, he was not there. Q. After they were in default of payment of the notes,

did ~Ir. Guthrie voluntarily give you the keys to the build­ing!

A. Yes, sir. Q. And after you gained possession of the fixtures and

the stock of goods, did you proceed to advertise the stock of goods and fixtures for sale 1

A. Yes, sir. Q. What prevented you from carrying out the sale as

advertised, Mr. NewcombY A. There bad been some locks put on the doors. Q. Locks put on the doors T A. Yes, sir. Q. ·There was one lo'ck on the door, I presume, alreadyf A. Yes, sir. Q. How many lock- in addition! A. I think one additional lock. I know there was one.

37

· I do not know whether there was any more, possibly two, possibly one on the screen door.

Q. Then is when, I believe, that you instituted this suitY A. Yes, sir.

[ 45] Q. I hand you here a clipping from the Roanoke papers, I will ask you if that is the advertisement

which was run in connection of the sale, and which you men­tioned you advertised Y

(Hands Witness clipping.)

A. Yes, sir. Q. I will ask you will you file this clipping as a part

of your deposition in this matter 7 A. Yes, sir.

{This clipping was filed as a part of the amended peti­tion in the case and cannot be taken therefrom).

Q. Mr. Newcomb, this print here shows at the bottom 10--20, was it on or about the lOth month and 20th day that you caused this sale to be advertised f

A. Yes~ sir. Q. Don't believe you ever talked to Mr. J anies P. Hart,

Trustee, about this matter at all did you Y A. No, sir. Q. At the time Mr. Guthrie surrendered the keys to

you and gave you possession of the fixtures and the stock of goods, did he come down to my office with you, at any time?

A. Ye~, sir. Q. Did he not in my office and jn my presence state

that he wanted you to take over the store, fixtures and stock of goods, and that he had already closed the doors of th'e

place of business Y [46] By Mr. Poindexter:

Q. Mr. Newcomb, was Mr. Hart present on the occa­sion you have just been asked about.

A. No, sir.

The foregoing question and any answer thereto IS ob­jected to as being hearsay evidence.

A. Yes, sir. Q. ~Ir. S. L. Newcomb, I believe, is an uncle of yours,

is he not? ·

r . 38

A. Yes, sir. Q. And he is one of the defendants in this suitY A. Yes, sir. Q. I believe that you caused a summons to be issued

for his appearance in this matter to testify in your behalf, did you notY

A. Yes, sir. Q. In this matterT A. Yes, sir. Q. Was the stock of goods and fixtures later sold Y A. Yes, sir. Q. How long afterwards, do you recall Y A. I think about a year, must have been about a year. Q. Mr. Newcomb, were you prese~t at the sale! A. Yes, sir.

Q. What were the proceeds from the sale of the fix­[47] tures, do you knowT

A. About $900 I think. Q. You say you think that it was $9007 A. Nqt exactly, but it was about that. Q. What were the proceeds of the sale of the tock of

goods? · A. I think that was about $300.00. Q. At the time the stock of goods and fixtures were

advertised for sale, the first time, did you have a purchaser for that stock of goods and fixtures at that time?

A. Yes, sir. Q. Who was that purchaserT A. Albert Blackwell. Q. Is he a business man of this city Y A. Yes, sir. Q. Was he able, ready and willing to buy Y A. Yes, sir. Q. At what agreed price did you have with ·him that

he would pay for the stock of goods and fixtures at the time of sale!

A. Tf f1 t0l0. me be would give $3000.00. Q. Was the stock of goods a fresh stock at that' timet A. Yes, sir. Q. Did they remain tightly closed in the store room

there for some timet .A. Yes, sir, about two years, I think, somethink along

[ 48] about a year I believe.

39

Q. Do you know at what time a deed of assignment ·was made by this man C. W. Guthrie to Mr. James P.. Hart, 'rrustee Y . ·

A. No, ·sir. Q. Do you know why it was made after Guthrie ap­

proached you and delivered ov_er to you the keys to the store room and the possession of the stock of goods and fixtures Y

A. Na; sir. Q. Was it sometime after your first publication in the

newspaper or notf A. Yes, after that, yes, sir, I think it was after that. Q. In your amended bi11 or petition in this matter you

have filed with the Court three copies of notes. I hand you here your amended bill where there are three exhibits A, B, C, which purports to be three copies of three notes dated 1\ugust 1st, 1923, for the sum of $821.16 each, payable to F. E. Newcomb or order at the First National Bank of Roan­oke, Va., with 6% interest oue thirty days after date, one· sixty days after date, and one ninety days after date. I will ask you to loo~ at these copie's and state whether or not they are correct copies of the original notes which you now retain t

~ A. Yes, sir. . Q. And those notes represent the purchase money on

these fixtures and stock of goods f A. Yes, sir. Q. I wish you to state, Mr. Newcomb, when you first

sold at what price did you sell the fixtures and the stock of goods, or did you sell them as a whole, without any

f49] agreed valuation upon either? '

By Mr. Poindexter: Any answer to the foregoing question is objected to upon the ground that a copy of this purported contract of additional sale is filed with the bill in this case, and no parol evidence is admissible to vary or alter the same.

A. 1 sold as a whole. Q. I presume you received some cash Y ... ~. Y e.s, sir. .

Cross Examination.

B.y Mr. Poindexter

Without waiving any of the foregoing objections, conn-

II'··- 40

sel for defendants now proceeds to cross examine the witness.

Q. Mr. Newcomb, you have identified as copies of the original notes, certain exhibits filed iu this cause. Will you please tell us where those original notes are at this time Y

A. I have them at home. Q. You did not bring tliem with you this morningY A. No, sir. , Q. Those notes aggregate, I believe, about $2,463.00,

'vhat credits are they subject to? -A. They are subject to the credits on the back, but I

have forgotten just the exact amounts. Q. Will you please look at the three copies of the notes

filed with this amended bill and tell me if there are any credits shown on the back of the same?

[50] A. There are no credits on these, but I have them on the original at home, have credits on them.

Q. The exhibits then that you filed with your amended bill are not true and correct copies of the original notes, are they, with the credits thereon Y

A. They are without the credits, they have not the credit.

Q. You have also filed as an exhibit with your amended bill what purports to be a notice of a public sale, signed by yourself, F. E. Newcomb, lien creditor, ,J. E. Palmer, p. q., you claim I believe to have had a contract of conditional sale on these various fixtures you had sold to Guthrie & Span. gler at that time, did you not? -

A. Yes, sir. Q. And is that the reason why you signed your name

F. E. Ne,vcom:h, lien creditor, as appears on this advertise­ment?

A. Yes, sir. Q. And you tell the Court there was due and owing to

you as of that time about how much? , A. At that time about, I have forgotten the amount it

has been so -long. At that time I think it was around, I be­lieve those credits were on there, about $1800 at that time.

Q. In other words yo uthink the balance due you at the time of the insertion of Uris advertisement was about $1800?

A. Something like that, I think. Q. I believe you stated that you had a ~fr. Blackwell

who wanted to purchase this stock of goods and fixtures at $3000Y

41

A. Yes, sir, he told me he would be glad to give [51] $3,000.

Q. You knew at the time this advertisement was in­serted that Guthrie & Spangler owed other creditors other than you, did you not Y

A. Yes, sir. Q. As a matter of fact, did not you 1mow that they

owed S. L. Newcomb your uncle, about $5007 A. Yes, sir. Q. The purpose of your sale was to sell what you

thought you had a lien on and pay yourself, was it not, Mr. Newcomb'

, A. Sell for the whole benefit. Q. In other words you were trying to raise your $1800 T A. Yes, sir, ot whatever the amount ·was at that time.

· Q. If in fact you had been able to have sold this stock of merchandise and fixtures to Mr. Blackwell for $3000, there wpuld have been $1200 for the other creditorst

A. Yes, sir. Q. I believe you stated that you have never had any

conversation with Mr. James P. Hart about the lien? A. No, sir. Q. Mr. Newcomb, in order to get the credits on the

back of these notes exactly correct, and I know you want the Court to hav~ that information, I am going to ask you this question. Will you please get the thre_e original ·notes which you now have in your possession and dictate to the stenog-

rapher the credits on the back of the same, and their . [52] dates?

A. Yes, sir. Q. I will ask you now this question-Will you now state

what those credits areY A. There is a credit on the note due thirty days after

date as follows :-October 1st, 1923, $620.00 and October 2nd, 1923, $53.62, making a total credit of $673.62.

Q. Mr. Newcomb you have said something about your uncle, S. L. Newcomb, having a lien of $500 on the fixtures. Do you lrno'v that from hearsay ·or how do you know about that-how did you find it out about his lien?

A. I saw it at the court house and I had heard it too. Q. In other words you saw in t1ie court house the deed

of trust he had taken on the fixtures, for this $500? A. Yes, sir.

I

42

. Q. You said something about your uncle, S. L. New­comb knowing about the sale of you to Guthrie & Spangler, tell us just what he knewT

A. About the sale to them Y Q. Yes, sirY A~ He knew all about it. All about my selling to them. Q. Why do you say he knew all about itT A. Because they bad talked to them a bout-' talked to

me about renting the building and had rented from him if they could buy from me.

Q. Did you hear any of that conversation between S. L. Newcomb and Guthrie & SpanglerT .

[53] A. No, sir, I did not hear it, but I know it occurred because he told me he had rented the building.

· Q. In other words your uncle told you he had rented the buildingT

A. No, sir, Mr. Guthrie: Q. Mr. Guthrie¥ A. Yes, sir, and for that reason-Q. And for that reason you think he knew about your

lienY A. Yes, sir, and his son was working for me all the -1

time and he talked it over himself. Q. Did Mr. S. L. Newcomb himself every tell you that

he knew a bout your lien t A. No, sir. Q. And the reason you think he knew about said con­

tract or conditional sale or lien is from what you have just testified to a hove T

A. Yes, and then his son was working there and he· kept in touch with him. . . . ... -... ~ ....

Re-Direct Examination.

By Mr. Palmer: Q. Mr. Newcomb, this $500 indebtedness of S. L. New­

comb to Guthrie & Spangler was incurred after or before you secured and docketed your conditional sales contract T

A. Afterwards. Q. I believe you stated that Mr. S. L. Newcomb owned

the building in 'vhich you were then operating the [54] storeY

A. Yes, sir.

43 . ~ .. ,

Q. And he then rented to Guthrie & Spangler Y A. Yes, sir. · · Q. And was S. L. Newcomb the one who put the first

lock on the building in addition to the lock that wa-s on it Y

A. First lock 7 Q. Mr. Newcomb, I will ask you if there was not an

additional lock put on the building soon after the keys were delivered to you, and then later another or third lock WfiS

put on the building after we had advertised it for sale? A. Yes, sir. . Q. And did S. L. Newcomb put the first lock on tho

building? . A. Yes, sir, put both of them on. Q. He put both of them on T A. Both additional locks. Q. He put on both additional locks? A. Yes, sir. Q. Do you know at whose instance and and request or

advice he put the last lock on Y A. No. sir. Q. Did you after taking possession of the building uud

stock of goods and fixtures endeavor to get in touch with the other outside creditors and request a letter to be sent to all of them, and also ascertained the indebtedness, a~d instructed your attorney to write to all creditors as shown by the books that the owners had surrendered the possessio11

of the said business to you? [55] A. Yes, sir.

Q. And that Mr. Coleman of F. B. Thomas & Oo. 1JL

company with yourself and your attorney bad entered the place of business this morning (which by this letter shows October 6) for the purpose of securing a list of the creditors of the debtors of the said Guthrie & Spaigler?

A. Yes, sir. Q. Did you then, after that, request your attorney tt~

notify th~ creditors that a meeting of the creditors would be held Monday Oct. 8th beginning at 5 P. M. in the law office of J. E. Palmer, 501-2 MacBain Bldgs. for the purpose that the creditors 'may be fullY. advised as to the status of the building?

A. Yes, sir. Q. I believe that was just before you caused the sale

to be published was it 7

44

' . A. · Yes, sir. . Q. Do you authorize the stenographer to sign your

name to this deposition? A.· Yes, sir~

And further this deponent saith not.

F. E. NEWCOMB. By Stenographer.

State· of Virginia:

City of Roanoke, to-wit:

I, 1\{ary B. Plunkett, a Notary Public in and for the city and State aforesaid, do hereby certify that the foregoing

depositions of F. E. Newcomb were duly taken, sworn [56] to, reduced to writing, and signature authorized signed

by me, for the purposes and at the time and place mentioned in the caption hereto.

Given under my hand this 16 day of October, 1925.

MARY B. PLUNKETT, Notary Public. -,

My commission expires September 24, 1929.

Due Mary B. Plunkett, Notary Public for taking evi-dence 1 hr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Due Mary B. Plunkett, Notary, for swearing witness.. . 25 Due Mary B. Plunkett, stenographer for transcribing

evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $8. 80

Total ........................................ $9. 80

;[57] And at another day, to-wit: On the 11th day ·of January 1924, the following decree was entered.

On motion of C. W. Guthrie, S. L. Newcomb and James P. Hart, Trustee, leave is hereby given them to file their demurrer to the above entitled bill, which is this day ordered accordingly filed. -

[58] . And at anoher day, to-wit: On the 17th day of May 1924, the following decree was entered. '

This cause ·which has been regularly matured by service of process upon all parties defendant and ·duly docketed and

45 ............. --

set for hearing, came on this day to be heard upon the bill and demurrer of J. P. Hart, Trustee, C. W. Guthrie and S. L. Newcomb filed by leave of Court in which demurrer F. E. Newcomb joined and was argued by counsel.

Upon consideration whereof, the Court is of the opinion that said demurrer is well taken and doth sustain the same, whereupon it is further asjudged, ordered and decreed that this cause be and the same is dismissed from the doeket of this Court.

[59] And at another day, to-wit: On the 24 day of May, 1924, the following decree was entered.

This day this cau.se cam'e on to be heard upon motion of the complainant, by counsel wherein the complainant moved the Court to set aside the decree entered in this cause on 17th day of May 1924, and·for leave of this Court to :fiie his amended petition in this cause.

In consideration whereof and it appearing to the Court that said decree was entered during this term of Court and this cause is still in the breast of the Court, and that same should be set aside.

It is therefore ordered, adjudged and decreed that said decree be, and the same is here by set aside, and this cause be reinstated on the docket. And leave is hereby granted the said complainant to file his amended petition in this cause and thereupon all of the defendants by E. W. Poindexter, their attorney, appeared and waived process but reserved the right to demur, plead and answer said petition.

[60] And at another day, to-wit: On the 25 day of July, 1924, the following decree was entered.

This cause came on this day to be again heard upon the papers formerly read and upon the amended petition of F. E. Newcomb heretofore filed by leave of the Court and was argued by counsel.

Upon consideration whereof and it appearing to the Court that it would be for the best interest of all parties liti­gant to this cause that the tangible personal prope-ty con­veyed unto .Tam~s P. Hart by C. W. Guthrie by deed bear­ing dat.P on the 25th dav of October. 1923. and dulv recorded in the Clerk's office of R.oanoke City. Virginia. in Miscel­lAneous Lien Book 8. pag-e 38, be sold and converted into cash, the fundFI derived therefrom to be held by the said ,James P. Hart, Trustee, subject to the rights of all parties litigant

46

thereto, a·s fully and as completely as if said tangible per­sonal property had not in fact been sold, it is, therefore, ad;.. judged, ordered and decreed that the said James P. Hart, Trustee, as aforesaid, do sell publicly or privately, as to him may seems best, and at the most advantageous price, said articles of tangible personal property, conveyed unto him by the said C. W. Guthrie, under the terms of the aforesaid deed of assignment, and report his proceedings unto this Court and this cause is continued.

[61] And at another day, to-wit: On the 14 day of Jan-uary 1925, the following decree was entered.

On motion of Wilson and Company, Incorporated, Wil­liam Schluderberg-T. J. l{urdle Company, Incorporated, F. B. Thomas and Company, Incorporated, Roanoke Paper Com­pany, Incorporated, Caldwell-Sites Company, Incorporated, Peerless Candy Company, Incorporated, Loose-Wiles Biscuit Oompany, Incorporated, and Lindsey-R·obinson and Com­pany, Incorporated, leave is given them, and each of them, to file their joint and separate petition in the above entitled cause, which is this day accordingly filed, and the Clerk of this Court is hereby directed to issue process for F. E. New­comb, C. W. Guthrie, James P. Hart, Trustee, L. E. Span­gler, and S. L. Newcomb, parties defendant named in said petition, returnable to the next Rules.

[62] And at another day, to-,vit: On the 14th day of Jan-uary, 1925, the following decree was entered.

On motion of James P. Hart, Trustee, leave is this day given him to file his answer to the original and amended petition in the above entitled cause, which is ordered accord­ingly filed.

[63] And at another day, to-: wit: On the 2 day of Feb-ruary 1925, the follo,viug decree was entered.

On motion of James P. Hart, Trustee, leave is this day given him to have his answer to the petition of Wilson & Oompany, Incorporated, et als., filed by leave of the Court in this cause, which answer is this day accordingly filed.

[64] And at another day, to-wit: On the 19 day of March 1925, the following decree was -entered.

- ----- ------~-----

47

On motion of F. E. Newcomb by counsel, leave is this day granted him to file his answer to the petition of Wilson & C'ompany, Incorporated, et als., heretofore filed by leave of the Court in this cause, which answer is this day accord­ingly filed.

[65] And at another day, to-,vit: On the 18 day of June 1925, the following decree was e~tered.

This day came Wilson and Company, Incorporated, Wil­liam Schluderberg-T. J. Ku~dle Company, Incorporated, F. B. Thomas and Company, Incorporated, Roanoke Paper Com­pany, Incorporated, Caldwell-Sites Company, Incorporated, Peerless Candy Company, Incorporated, Loose-Wiles Biscuit Company, Incorporated, and Lindsey-Robinson and Com­pany, Incorporated, and asked leave of the Court to file their amended petition in the above entitled cause, whereupon it is adjudged, ordered and decreed that the said petition be and the 'the same is filed, and the Clerk of this Court is di­rected to issue summons for the parties defendant named therein, viz: C. W. Guthrie, L. E. Spangler, partners trad­ing as Guthrie and Spaingler, F. E. Newcomb, James P. Hart, Trustee, and S. L. Newcomb, returnable to Second July Rules.

{66] And 'at another day, to-wit: On the 10 day of Octo-ber, 1925 the following decree was entered.

This cause came on this day to be heard upon the papers formerly read and on motion of James P. Hart, Trustee, by counsel for the ·Court to hear this cause on this day it hav­ing been set for hearing on this day at the calling of the docket on the first day of this term, and also upon the motion of F. E. Newcomb by counsel to continue the case to allow him to take depositions, showing that James P. Hart, Trustee had actual notice of the sale by F. E. Newcomb to Guthrie & Spangler and was ordered by counsel.

On consideration whereof the Court doth adjudge, order and decree that the said F. E. Newcomb be and he is here­by allowed to take his said depositions by the 17th day of October 1925 and if he does take said depositions by that date and the said James P. Hart, Trustee, by counsel so desires he shall complete· his depositions by the 24th day of October. 1925, but, if said plaintiff does not take his depo­sitions by the 17th day of October 1925, or if taken and the

-!8

Trustee by counsel desires to take no depositions then the cause shall be heard on the 17th day of October 1925.

[67] And at another day, to-wit: On the 4 day of De-cember 1925, the following decree was entered.

This cause came on this day to be again heard upon the papers formerly read; upon the amended bill filed by F. E. Newcomb in this cause; upon the answer of James P. Hart, Trustee ; upon the petition and amended petition of Wilson & Company, Incorporated, William Schluderberg-T. J. Kur­dle Company, Incorporated, F. B. Thomas & Company, In­corporated, Roanoke Paper Company, Incorporated,. Cald­well-Sites Company, Incorporated, Peerless Candy Company, Incorporated, Loose-Wiles Biscuit Company, Incorporated, and Lindsey-Robinson Company, Incorporated, upon whicah said petitions process duly issued for the defendants to this cause, viz: F. E. Newcomb, C. W. Guthrie, James P. Hart. Trustee, L. E. Spangler and S. L. Newcomb, 'vhich ~mirl p"ti.­tion and amended petition have duly matured, been docketed and set for hearing; upon the ans,ver of James P. Hart, Trustee, to the amended bill filed by the plaintiff in this ease, :' and to the petition and amended petition of the said WJson & Company, Incorporated, William Schluderherg-T .. J. Kur-dle Company, Incorporated, F. B. Thomas & Company, In­corporated, Roanoke Paper Company, Incorporated, Cald­well-Sites Company, Incorporated, Peerless Candy Company, Incorporated, Loose-Wiles Biscuit Company, Incorporated, and Lindsey-Robinson Company, Incorporated, and upon depositions taken on behalf of the said F. E. N ewcomh and was argued by counsel. Upon consideration whereof the Court is of the opinion that the plaintiff, F. E. Newcomb, is

not entitled to the relief as prayed for in his said [68] original and amended bill upon the ground that the

alleged contract of conditional sale between the said F. E. ~ ewcomb and C. W. Guthrie and L. E. Spangler was inherently incapable· of being docketed by reason of which it constituted no notice to creditors or purchasers for value, and that the plaintiff, F. E. Newcomb, has not ~hown that the said .James P. Hart, Trustee. had actual notice of the attempted reservation of title on the part of of tlH~ said F.

· E. Ne,vcomb in the sale made by him to the said C. W. Guth­rie an.d L. E. Spangler, and doth so adjud~e, order and rle­cree, and nothing further remaining to be done in this cause,

49

it is . further adjudged, ordered and decreed that this suit . be and the same is dismissed at the cost of the plaintiff.

The plaintiff, F. E. Newcomb, signif-ing his intention of applying to the Supreme Court of Appeals of Virginia for an appeal on his motion the opperation of this decree is suspended for sixty days from the rising of this Court upon the plaintiff or some one for him entering into bond within ten days from the rising of this Court before its Clerk in the penalty of two hundred and fifty dollars with good secu-

1 rity and conditioned as the law directs.

Clerk's Certificate.

State of Virginia:

City of Roanoke:

I, .R. J. Watson, Clerk of the Court of Law and Chan­eery for the City of Roanoke, Virginia, do hereby certify that the foregoing is a true and correct transcript of' the record in the case of F. E. Newcomb against C. W. Guthrie, et als., lately determined by said Court. I f1,1rther certify that notice of the application for this transcript ·has been duly given to counsel for the defendants, as required by law.

i .

Given under my hand this 20th day of January, 1926.

Fee for transcript, $22.50 •

.A. Copy: Teste:

' ... "' J.

R. J. WATSON, Clerk.

J. M. KELLY, Olerk.

·• :~.--t-·--·

Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 9 Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . 9 Contract of Sale of Goods and Chattels. . . . . . . . . . . . . . .. . . 10 Demurrer of C. W. Guthrie and Others ........ ·'· ....... 13 Amended Petition of F. E. Newcomb. . . . . . . . . . . . . . . . . . . 13 ''Exhibit A'' ........................................ 15 ''Exhibit B'' .......................................... 15 ''Exhibit 0'' ....... · .................................. 16 ''Exhibit D'' ........................................ '16 Petition of Wilson & Co~ ................. ~· . . . . . . . . . . . . 17 Answer of James P. llart, Trustee. . . . . . . . . . . . . . . . . . . . . 23 Answer of James P. Hart, Trustee, to Petition of Wilson

& Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Answer of F. E. Newcomb to Petition of Wilson & Co ..... 26 Amended Petition of Wilson & Co ........ :. . . . . . . . . . . . . 28 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 F. E. Newcomb ...................................... 34 Decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 to 48 Clerk's Certificate ................................ ! •• 49