No. 1397-6017 | Tex. Comm'n App. | Nov 28, 1933
The opinion of the Court of Civil Appeals is reported in 38 S.W.2d 118" date_filed="1931-03-28" court="Tex. App." case_name="American Surety Co. of New York v. M-B Ise Kream Co.">38 S.W.(2d) 118 et seq. Under the facts found by the Court of Civil Appeals, we think the opinion of that court is correct, and approve .same. The plaintiff in error having paid the debt of the Crystal Ice Company, by virtue of the fact that it signed the bond to that effect, was subrogated to all the rights of the United States government. However, it occupied only the position which the government would have occupied had not the plaintiff in error paid the debt due the government. Section 115 of title 26 of the U. S. Code Annotated, quoted in the opinion of the Court of Civil Appeals, designated the manner in which a lien shall be fixed so as to make liable for the debt of the seller any purchaser of the property. The provisions of this law were not followed, and the consequence is the government lost its lien as against the property of the Crystal Ice Company, in the hands of the defendant in error, who is shown to have been a purchaser for value without notice. This is the principal contention of the plaintiff in error.
There is another contention by it, to the effect that the transaction between the parties comes within the purview of the Bulk Sales Law, article 4001, R. S. 1925. The opinion cites several eases and also Corpus Juris, to the effect that materials and ingredients ' used by a manufacturer fob the manufacture of an article different from any of the ingredients does not constitute merchandise, and therefore is not within the meaning of the Bulk Sales Law.
We recommend that the judgment of the Court of Civil Appeals affirming that of the district court be affirmed.
The judgments of the district court and Court of Civil .Appeals are both affirmed, as recommended by the Commission of Appeals.