Bufkin v. Lyon

68 Miss. 255 | Miss. | 1890

Campbell, J.,

delivered the opinion of the court.

It does not appear from the statement of facts who transacted business as to the goods, and that is the material inquiry and the determining factor under § 1300 of the code. O. E. Bufkin was in possession as clerk, and, presumably, what he did was in that capacity, and in the name and behalf of his employer, as there is nothing to suggest the contrary. The fact that the clerk had taken down the sign of his employer did not subject the goods of his employer to the demands of the creditors of the clerk. There must have been more than this to effect such a result. If the clerk transacted business in his own name as apparent owner, and used or acquired the goods in such business, the statute makes them his as to his creditors, but it is not in the power of a clerk merely by taking down the sign of his principal to subject the goods of the principal to the seizure of the creditors of the clerk. There is nothing to show that the goods were used or acquired by O. E. Bufkin in business transacted by him in his own name. He had owned the goods, it is true, but had sold them, whereby they became the property of another, and as such were not liable for his debts, unless made so by § 1300; and they are not shown to have been, as already stated, because it is not shown that O. E. B. transacted business in his own name, and used or acquired the goods in such business.

In Wolf v. Kahn, 62 Miss. 814, “ The seller was in and about the store just as he had been when owner; he who had been up to that hour clerk then became owner. . . . The sign (of the former owner) remained over the door; his revenue and privilege licenses remained posted in the room; Lewis Kahn, the purchaser, who had been the clerk, and Max Kalin, the clerk, who had been the owner, were in and about the store just as they always had been. Every appearance that would lead to the belief on the part of the public that Max was transacting the business as before was presented, and nothing was done or said from which an inference could be drawn that he had retired from business, and his late clerk had embarked in it and these facts were held to make the goods liable to the creditors of Max Kahn, who acted as owner after the alleged sale, just as he had done before.

The case before us differs from that in several important particulars. This was not a sale by an employer to his clerk, and the purchaser put up a sign over the door with his name on it, which remained up until taken down by the clerk, and that is all that appears.

The question is not how significant the facts would be on an issue, whether the sale was in good faith or not; but do they bring the case within the operation of § 1300, and that is answered in the negative.

Judgment reversed, and judgment here for the claimant, which is the judgment which should have been rendered in the circuit court.