Carnaggio Bros. v. City of Greenwood, 108 So. 141

108 So. 141 | Miss. | 1926

^* Corpus Juris-Cyc. References; Electricity 20CJ, p. 306, n. 15 New; p. 333, n. 77, 83; p. 334, n. 92, New; Fraudulent Conveyances 27CJ, p. 878, n. 76; Names 29Cyc, p. 270, n. 44 New; Applicability of Bulk Sales Act to hotel, restaurant, boarding house, saloon, pool hall, or livery stable see note in 7 A.L.R. 1587; 12 R.C.L. 525; 2 R.C.L. Supp. 1443; 4 R.C.L. Supp. 761; 5 R.C.L. Supp. 649. The appellants brought suit against the city of Greenwood for fifty-six dollars and seventeen cents, paid the city under protest for a light bill held by the city against one John Kariaze, who had operated a restaurant business in Greenwood under the name of "Elite Cafe." The bill claimed was for the month of February, but after that time Kariaze and his partners sold out to the appellants, who thereafter conducted the restaurant business under the same name, the Elite Cafe.

It had been the custom of the city to draw drafts on the Elite Cafe in payment of its monthly bills for lights for the said cafe, and it drew the customary draft which had theretofore been paid by Kariaze and his partners, and the draft was paid by the bank, but after the sale the draft was charged back by the bank to the city of Greenwood, and the city then demanded of the appellants the payment of the said bill, which they refused to pay; whereupon the city discontinued the lights, and the appellants applied for a continuation of the lights, but the city refused to furnish the lights unless the said bill was first paid. Appellants conferred with counsel and paid the bill, under protest, in order to secure the lights, and brought suit for a return of the money.

The city defended, it appears, upon the theory that there was a continuation of the business without notice to it of the change in ownership of the business, and also on the theory that the Bulk Sales Law (section 3129, Hemingway's Code [Laws of 1908, chapter 100]), was not complied with in making the sale, and also because no business sign was placed at the building to indicate the true owner under the provision of section 3128, Hemingway's Code (section 4784, Code of 1906).

When the sale was made from Kariaze to the appellants, it conveyed the following described property:

"At our place of business in said city of Greenwood, which place of business is known and conducted as the Elite Cafe, to wit, all the fixtures, and all personal property of every kind and description owned by us, or any of us and now in our possession, or under our control, and used in or about or in connection with the conducting of the business of the Elite Cafe in the city of Greenwood, in Leflore county, Miss., which cafe is located at the northwest corner of the intersection of Carrollton avenue and Lamar street in said city. All merchandise and all flour, meal, bread, coffee, sugar, and milk which are now on hand are expressly excepted from this conveyance and are to be conveyed to the grantors as provided for in the contract hereinabove mentioned. It is intended by this instrument to convey to the grantors herein the name and the good will of the Elite Cafe and the right to continue business should they so desire under the same name as the business is now conducted, to wit, Elite Cafe."

There was a judgment for the plaintiff in the justice court, and an appeal was taken to the circuit court where the case was tried, without a jury, before the judge, who rendered judgment for the city, from which this appeal is prosecuted.

We assume that the circuit judge decided for the city on the theory that the Bulk Sales Statute applied or that the Business Sign Statute applied, or both, but we are unable to agree with that conclusion. By the express terms of the contract, all merchandise and other articles were excepted from the contract, of sale, and it appears that what was really sold was the fixtures and restaurant equipment with good will. We are of the opinion that section 3129, Hemingway's Code (Laws of 1908, ch. 100), does not apply to a business of this kind. The running of a restaurant is not mercantile business within the meaning of this statute, where no merchandise is sold in the sale of the business.

We are also of the opinion that the Sign Statute (section 3128, Hemingway's Code [section 4784, Code of 1906]) is not applicable here, because there was no claim against the property conveyed, nor was the service sold to the appellants for the month of February. See John Van Range Co. v. Allen (Miss), 7 So. 499;Oliver v. Ferguson, 73 So. 569, 112 Miss. 521.

The contract with the original owners of the Elite Cafe was a contract between the city and those persons. No lien was established in favor of the city by furnishing electricity. There is nothing to show any agreement by the appellants to assume that the indebtedness in the purchase of the business, nor does the law impose any obligation except in cases where the law or a contract creates a lien, and a party is only liable for the debts of another person when he contracts to become liable, unless a statute has imposed a condition upon the right to contract. In the case of a city furnishing the public electricity or water, it becomes a public service business, and must furnish those persons, applying therefor, this public service, and cannot require a person applying to pay the debts of other persons who have used the service at the same place and have not paid the bills unless it has a contract by which it has secured a lien or right going with the property and binding it in the hands of the purchasers. Ginnings v. Meridian Water Co., 56 So. 450,100 Miss. 507, Ann. Cas. 1914A, 540; Burke v. Water Valley, 40 So. 820, 87 Miss. 732, 112 Am. St. Rep. 468.

We think the court below was in error and should have rendered judgment for the appellants. The judgment of the court below will therefore be reversed, and judgment rendered here for the appellants.

Reversed, and judgment here.