120 Neb. 588 | Neb. | 1931
This appeal involves the interpretation of the provisions of the Nebraska “bulk sales” statute. Comp. St. 1929, sec. 36-501. It appears that certain actions were brought by one Peter Damicus to recover the rental accruing to him under the terms of a written lease with one Nelson and one Smith for the period January to November, 1928, inclusive. Judgments were entered for the plaintiff. Subsequently garnishment proceedings in aid of execution were had in which Patrick H. Kelly and Edward J. Kelly appeared and were examined as garnishees. Thereafter, challenging the answers of these parties thus made, this action was brought against them under the. provisions of section 20-1030, Comp. St. 1929.
It also appears that, during the period covered by the written lease referred to, Nelson and Smith were the proprietors of a stock of drugs and carried on a retail drug business in Omaha, Nebraska. In the month of November,
As their first contention, the defendants challenge the sufficiency of the plaintiff’s petition. It does not appear that this point was properly presented to the trial court. True, in the amended answer on which the case was tried, as part thereof, the substance of a demurrer is incorporated, but joined to paragraphs containing a general denial and other facts constituting a defense pleaded specially. However, the controlling rule of pleading applicable to the question presented by this record is that, in this jurisdiction, “A demurrer to the petition is not, by the provisions of our Code of Practice, a proper part of the answer filed in a case, and should be disregarded.” Fidelity & Deposit Co. v. Parkinson, 68 Neb. 319; Kyner v. Whittemore, 90 Neb. 188; Pine-Ule Medicine Co. v. Yoder & Eply, 91 Neb. 78. The bill of exceptions discloses no demurrer ore tenus was interposed by the defendants prior to or during the introduction of the evidence. After the introduction of evidence had been completed and all parties had rested, the defendants moved for an instructed verdict, stating, as one reason for the application, “plaintiff’s petition does not state a cause of action against the defendants, or either of them.” This motion the district court denied. We are of the opinion that it did not err in so doing. So far as the quoted challenge to the petition is concerned, it was tantamount to a general demurrer ore tenus interposed at the conclusion of the evidence. Thus considering it, the language employed by commissioner Albert in National Fire
In the instant case, both plaintiff and defendants moved for instructed verdicts at the close of the evidence. The defendants’ motion was denied and the plaintiff’s sustained.
It seems conceded that in November, 1928, Nelson and Smith were proprietors of a stock of drugs located in Omaha and carried on a retail drug business at that place. This stock they sold to defendants Kelly in bulk. Under the terms of the Nebraska bulk sales law, such a sale is void as to creditors of the sellers, “unless the purchaser demands and receives from the seller a written list of names and addresses of creditors of the seller, with the amount of indebtedness due or owing to each, and certified by the
While the question is not discussed at length in the opinion of this court in Cech v. Costello, 117 Neb. 224, it was in fact determined that all creditors (of the sellers) were within the purview and protection of the Nebraska bulk sales act, without reference to the origin or source of their indebtedness. In the case last cited this court awarded relief to a farm hand whose indebtedness was created by his labor on a farm and had no relation to nor connection with the stock of merchandise involved, save and except the owner and seller of the stock of merchandise was the same individual who was indebted to Cech for farm work. It follows, therefore, in the instant case that the terms of our statute in effect require that all creditors of the sellers be so listed and verified as such by the oath of the sellers. The language of the affidavit quoted above contains in effect a limitation which operates to exclude certain possible classes of creditors from the list submitted. The evidence, therefore, unmistakably discloses that the sellers in the instant case gave and the purchasers accepted, as a written list of names and addresses of creditors of the sellers, a list in fact bearing on its face evidence that it was not a complete list, and that all creditors of the sellers were not therein or thereby purported to be listed. Due to the defects thus appearing on its face, this list, as verified by the sellers’ oath, cannot be accepted as a compliance with the requirements of the statute to sustain the sale. It was the purchasers’ duty in this respect to demand and require a full performance of the sellers’ duties under the statute, which would have necessitated the submission by such sell
Nor does the knowledge that Damicus obtained through current rumor as to the fact the sale had been effected, nor the delay which characterized the bringing of this action as disclosed by the record before us, in any manner impair the right of the plaintiff to maintain it. Cech v. Costello, 117 Neb. 224.
It would also seem that the form of the notice to creditors which was employed by the Kellys was insufficient under the terms of the statute, in that it wholly omitted reference to or information of “price, terms and conditions” of said sale. However, admittedly no notice of any kind was in fact given Damicus of this sale, so this point is not determined.
In view of the entire record, it would seem that the defendants wholly failed to establish a substantial performance of the requirements of section 36-501, Comp. St. 1929, and that they are therefore to be regarded as having obtained possession of a stock of merchandise pursuant to a purchase thereof in bulk, without having complied with the provisions of section 36-501, Comp. St. 1929, commonly known as the bulk sales law, and as trustees for the benefit of the creditors of their vendors and liable as garnishees. Home Pattern Co. v. Gore, 113 Neb. 535; Cech v. Costello, 117 Neb. 224.
The judgment of the trial court is therefore
Affirmed.