145 S.W. 1076 | Tex. App. | 1912
The court below sustained general and special exceptions to appellant's petition and dismissed the suit as against appellee. The controlling question presented is whether a purchaser of a stock of goods, wares, and merchandise in bulk from an insolvent debtor, without complying with the provisions of the act of the Thirty-First Legislature, known as the Bulk Sales Law, is liable at the suit of a creditor of the insolvent who has not, by attachment, garnishee process, or otherwise, acquired a lien on the merchandise so sold.
The law in question, so far as now material, reads:
"Section 1. That any sale or transfer of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the usual and regular prosecution of the seller's or transferrer's business, or a sale or transfer of an entire stock of merchandise in bulk, shall be void as against creditors of the seller or transferrer unless the purchaser or transferree shall at least ten days before the sale or transfer, in good faith make full and explicit inquiry of the seller or transferrer as to the name and place of residence or place of business of each and all creditors of the seller or transferrer, and the amount owing to each such creditor by the seller or transferrer, and obtain from the seller or transferrer a written answer to such inquiries, which answers shall be sworn to by the seller or transferrer; and unless the purchaser or transferree at least ten days before the sale or transfer in good faith, notify or cause to be notified personally or by registered mail each of the seller's or transferrer's creditors of whom the purchaser or transferree has knowledge, of said proposed sale or transfer.
"Sec. 2. Any purchaser or transferree who shall conform to the provisions of this act shall not in any way be held accountable to any creditor of the seller or transferrer for any of the goods, wares or merchandise that have come into the possession of said purchaser or transferree by virtue of such sale or transfer."
See General Laws, 1909, p. 66.
In the case before us, appellant alleged that his debtors, against whom judgment has been secured, were insolvent; that appellee knew this fact, and, conspiring with them for the purpose of defrauding their creditors, including appellant, purchased, out of the ordinary course of trade, the whole of *1077 the general stock of merchandise with which the insolvents had been doing a retail business; that appellee made no inquiry for the names and residences of creditors, or gave them, or any of them, notice of the proposed purchase, or otherwise complied with the law quoted. It was further alleged that before appellant discovered the fraud appellee resold the goods to another, and thereby, wholly converted them to his own use; but no character of lien was asserted, other than may be implied from the second section of the act upon which appellant relies.
In Washington and Georgia, under statutes substantially as ours, it is held that a vendee of a stock of goods sold in bulk out of the ordinary course of business, and who purchased without observing the directions of the statute in giving notice to the creditors of the vendor, may be held accountable for the value of the goods. See State ex rel. Weidert v. Superior Court of King County et al.,
Under our own authorities, the question seems clear. In the case of Le Gierse v. Kellum Rotan,
Appellant insists, however, that, under the act in question, the facts alleged and proven establish in his favor an equitable lien on the property so purchased by Sims and a liability on Sims' part for its conversion. We have not been able to bring ourselves to this conclusion, though it is very forcefully presented in the able brief filed in appellant's behalf. It is true the act declares void any sale such as here alleged; but no trust relation, and no lien upon or right in the property so unlawfully purchased, is specifically conferred upon the vendor's creditors, as would have been so easy, had such been the legislative purpose. Nor do we think such lien or right is to be implied from the second section. We think this section is to be construed as meaning that a purchaser who, in good faith, observes the directions of the act may purchase freely, and in such case takes good title to the goods purchased free from attack by attachment or otherwise. In our judgment, it falls short of imposing any personal liability in any event.
Appellee also attacks the statute as unconstitutional; but this question is unnecessary to our conclusion, and is therefore not determined.
We conclude that the judgment must be affirmed.