Weil v. Lehmayer

Fowler, J., delivered the opinion of the Oourt. On the fifteenth day of September, 1887, Herman Strauss executed a deed of trust for the benefit of his creditors to the appellant, M. Star Weil, who thereupon took possession of said Strauss’ store, located on Gray street, in Baltimore City, and the goods therein contained, consisting of ready-made clothing. On the same day the deed was executed the Circuit Court of Baltimore City assumed jurisdiction of the trust. A short time thereafter, on the seventh of October of the same year, the appellant, as trustee,, reported to the Circuit Court that he had taken possession of the store, its stock of goods and fixtures, and that after advertising the same, the highest bid he received was $1,7Q0, which, by order of said Court, was accepted.

An auditor’s account was then stated and ratified, showing a net balance of $1,171.96 in the hands of the appellant for distribution among the creditors. It appears, however, that on the 17th of September, two days after the deed of trust was executed, Isaac Benesch, one of the creditors of Strauss, had a writ of replevin issued against appellant to recover thirty-five suits of clothing which he had sold to Strauss; and which he claimed to he in the store and then in the possession of appellant. Benesch’s suit was based upon the ground that there was fraud on the part of Strauss in the purchase of goods, and that, therefore, no title passed to him, and none from him by his deed to the appellant. Another creditor, Isidor Stark, also issued a writ of replevin, but this suit was subsequently dismissed upon the payment of costs by the defendant.

By the advice of his counsel, the appellant refused to permit Benesch, or any one in his behalf, to enter Strauss’ store for the purpose of taking the goods claimed in the replevin suit, and it came to trial. The plaintiff in that suit offered testimony to prove that all the goods he ⁸³ claimed to recover were in the store of Strauss at the time of the execution of the deed of trust, and that they so remained there and in the possession of the appellant at the time of the issuing of the writ, and that no title passed to said Strauss, nor to the appellant for the reason before given. The appellant, being defendant in said replevin suit, and having no personal knowledge in regard to the transaction, offered the testimony of Strauss and his clerk to prove that the goods claimed by Benesch had all been sold by Strauss before the deed was executed, except three or four suits, and that all of said goods had been purchased by Strauss in good faith. The jury, under the instructions of the Court, rendered a verdict in favor of Benesch for $13.25 the value of the goods admitted to have been in appellant’s hands, and judgment was entered thereon.

The plaintiff having recovered only a small part of his claim, and having been required by the Court to pay the costs, appealed to this Court. The judgment was reversed and a new trial awarded. Benesch vs. Weil, 69 Md., 276 . At the second trial, upon the same testimony offered in the first, Benesch recovered a judgment for the whole amount of his claim amounting to $350.50, and costs, which under the order of the Circuit Court of April 23, 1889, the appellant paid.

He also paid by the same authority $137.90 the costs in this Court. Another auditor’s account was filed, crediting appellant with the above payments. To this account, and especially to the allowance of the payments just mentioned, exceptions were filed by two of the creditors of Strauss, which having been sustained this appeal was taken. The only question presented is whether the appellant is entitled to an allowance for the judgment in the replevin suit, and costs, amounting to $360, anti the costs incurred in this Court on Benesch’s appeal in that ⁸⁴ suit — both payments having been made by him as trustee, under the express order of the Court which had