100 S.E. 611 | N.C. | 1919
The plaintiff, Armfield Company, alleged that the defendant C. A. Saleeby was indebted to them in the sum of $446.29 for goods sold and delivered, and that he, being a retail fruit dealer, had sold a large part of his stock in bulk to his codefendants, T. S. Saleeby Co., with intent to defraud the creditors of C. A. Saleeby, and contrary to the provisions of "Bulk Sales Law."
The suit was brought first in the recorder's court, and then carried by appeal from the judgment to the Superior Court. The jurisdiction of the recorder's court is restricted to actions on contracts not exceeding in amount five hundred dollars, and actions of tort where the amount does not exceed three hundred dollars.
The facts were, so far as admitted, that C. A. Saleeby had increased his stock of goods just before and during the Christmas holidays, and among other additions to his stock he had bought 179 barrels of apples in two lots, one of 100 barrels and the other of 79 barrels, and that he had afterwards sold them in the same way, that is, in two lots of 100 barrels and 79 barrels, about the same time, from the cars. There was much evidence as to the value of the stock varying from $1,500 to $5,000, the estimates though depending somewhat, it appears, upon the times they were made. It was admitted that both lots of the apples were worth $450. The court submitted it to the jury to find whether there had been a violation of the "Bulk Sales Law" upon all the evidence as to the value of the stock, the nature of the business, and other pertinent matters. The defendants asked the court to give this instruction to the jury:
"If the jury shall find that the usual stock of goods in the store of C. A. Saleeby was from $3,000 to $5,000, then the court charges you that the sale of 100 barrels of apples of the value of about $300 is not the sale in bulk of a large part, or the whole, of the (300) stock of merchandise of C. A. Saleeby, and you should answer the issue `No.' This is also true as to the 79 barrels of apples."
This instruction was refused, and the defendants excepted. It was admitted that defendants had not complied with the requirements of the "Bulk Sales Law" as to giving notice, etc.
The jury returned the following verdict:
Did the defendant C. A. Saleeby sell in bulk a large part of his *321 stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of his business, without complying with the requirements of section 964a, Pell's Revisal, as alleged in the complaint? Answer: "Yes."
Judgment and appeal. after stating the case: It having appeared that the property sold by C. A. Saleeby to his codefendants was worth more than the amount of his indebtedness to the plaintiff, the court gave judgment against both defendants for $446.29, which was the amount of the debt.
The court submitted to the jury, for their determination upon the evidence, the question whether the "Bulk Sales Law" had been violated, and refused to instruct the jury as requested by the defendant. This was error. The statute forbids the sale of a large part or the whole of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller's business, without first complying with certain requirements therein specified as to notice, etc., and if they are not observed, declares that the sale shall be void, and even if they are, such a sale is made prima facie evidence of fraud. Fraud on creditors is the basis of this new remedy, in the one case the fact of noncompliance with the requirements of the statute is conclusive evidence of it, and the sale is void, and in the other it is prima facie fraudulent, and the evidence is referred to the jury upon which they may find the fact of fraud. Gallup v. Rozier,
The defendant further contends that, as this action was originally brought in the recorder's court, the Superior Court only acquired the jurisdiction derivatively of the recorder's court, and could not amend the pleadings so as to change that jurisdiction or to enlarge it, and that it has attempted to do so by allowing the plaintiff to waive the tort arising out of the fraud, and to sue on contract. The jurisdiction conferred upon the recorder's court is limited to those cases of contract where the amount in dispute does not exceed $500, and in cases of torts, when it does not exceed $300, but within those limits the jurisdiction is quite broad and comprehensive. The Public-Local Laws of 1913, ch. 667, makes the jurisdiction of the recorder's court concurrent with that of the Superior Court (sec. 3, subsec. 2) in all civil actions, matters and proceedings founded on contract within the above limit, and the same provision is made in the case of torts; and by section 26 the procedure, with certain exceptions, is required to follow the rules and practice as set forth in chapter 12 of the Revisal of 1905, on Civil Procedure and Amendments thereto, in so far as the same may be adapted to the needs and requirements of said court, and any changes in the rules of procedure of the court are required to be published. We think the court had the power, under this act, to proceed against both defendants upon the supposition that the tort, if one was committed, had been waived, and that plaintiff had elected to sue in contract. The complaint, as originally framed, indicated clearly that this was the intention of the pleader, and we must construe it liberally. Rev., sec. 495; Blackmore v. Winders,
We have held that in cases of fraud, where the person committing it has been thereby enriched to the damage or detriment of the other and innocent party, indebitatus assumpsit will lie against him, upon the ground that the law implies a promise on his part to restore what he has thus gained by the transaction. The subject is discussed in Keener on Quasi Contracts, pp. 318-325. We so decided in Sanders v. Ragan,
It was decided in Whitmore v. Hyatt,
The remaining objection of defendants is not one which they are in a position to set up, as the record shows that (304) they moved to dismiss the action because J. A. Nevin, trustee in bankruptcy, had not been made a party thereto, whereupon the court found that he had theretofore been made a party as interpleader, without objection, by order of Judge Lyon, and then ordered that he come in and be allowed to join with the plaintiff in the prosecution of the action. By not objecting at first defendants waived their right to object now. A defendant cannot ask that a party be brought in, and when it is so ordered, object because he is an improper party, for when the court has done what he has asked to be done he is in no position to insist that it be undone. But the trustee was a proper party under the circumstances to prevent further litigation. He claimed the entire fund as trustee for all the creditors, including the plaintiff, while the latter claimed only his proportionate part of it.Symons v. Reid,
There was error in the charge, because of which a new trial is ordered.
New trial.
Cited: Rubber Co. v. Morris,
(305)