138 P. 847 | Or. | 1914
Opinion by
“There is only one way to bring before this court any evidence offered and rejected in the court below, and that is by incorporating it in a bill of exceptions,*184 either by a copy included therein or by making it an exhibit thereto."
In the case at bar the oral testimony offered is certified by the judge to be such; but the rulings of the court thereon are not so certified, and the alleged verified list of creditors is not in the record, so that we cannot by an inspection of it determine whether or not it complied substantially with the statutory requirements: See, also, Nosler v. Coos Bay Nav. Co., 40 Or. 305 (63 Pac. 1050, 64 Pac. 855); Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205 (46 Pac. 790, 60 Am. St. Rep. 818, 34 L. R. A. 368); Farrell v. Oregon Gold Co., 31 Or. 463 (49 Pac. 876); Miles v. Swanson, 47 Or. 213 (82 Pac. 954); Multnomah Lumber Co. v. Weston Basket Co., 54 Or. 22 (99 Pac. 1046, 102 Pac. 1); Sit You Gune v. Hurd, 61 Or. 182 (120 Pac. 737, 1135); National Council etc. v. McGinn, post, (138 Pac. 493).
“Sec. 6069. It shall be the duty of every person who shall bargain for or purchase any stock of goods, wares, or merchandise in bulk, for cash or on credit, to demand and receive from the vendor thereof, and if the vendor be a corporation then from a managing officer or agent thereof, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness therefor, a written statement under oath containing the names and addresses of all the creditors of said vendor, together with the amount of indebtedness due or owing, or to become due or owing, by said vendor to each of such creditors, and if there be no such creditors, a written statement under oath to that*185 effect; and it shall be the duty of such vendor to furnish such statement at least five days before any sale or transfer by him of any stock of goods, wares, or merchandise in bulk.
“Sec. 6070. After having received from the vendor the written statement under oath mentioned in Section 6069 the vendee shall, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness for the same, in good faith notify or cause to be notified, personally or by wire or by registered letter, each of the creditors of the vendor named in said statement, of the proposed purchase by him of such stock of goods, wares, or merchandise; and whenever any person shall purchase any stock of goods, wares, or merchandise in bulk, or shall pay the purchase price or any part thereof, or execute or deliver to the vendor thereof or to his order, or to any person for his use, any promissory note or other evidence of indebtedness for said stock, or any part thereof, without having first demanded and received from his vendor the statement under oath as provided in Section 6069, and without having also notified or caused to be notified all of the creditors of the vendor named in such statement, as in this section prescribed, such purchase, sale, or transfer shall, as to any and all creditors of the vendor, be conclusively presumed fraudulent and void.
“Sec. 6071. Any vendor of a stock of goods, wares, or merchandise in bulk, who shall knowingly or willfully make or deliver, or cause to be made or delivered, any false statement, or any statement of which any material portion is false, or shall fail to include the names of all of his creditors in any such statement as is required in Section 6069, shall be deemed guilty of perjury, and upon conviction thereof shall be punished accordingly. "
Much difference of opinion formerly existed in different jurisdictions as to the constitutionality of stat
It is possible that the court below may have wrongly interpreted the statute; but, while a court should at all stages disregard mere technical defects, it cannot disregard the plain provisions of the statute which require the evidence and rulings of the court thereon to be brought here by a properly authenticated bill of exceptions.
The judgment is affirmed. Affirmed.