72 Wash. 338 | Wash. | 1913
This appeal involves the construction of the sales in bulk law, and the proper judgment to be entered against garnishee defendants, who purchased the goods and business in bulk from the original debtor without taking the required affidavit. The material facts presenting these questions are about these: Defendant purchased a saloon business from one G. W. Crowe, borrowing $2,000 from respondent to pay upon the purchase price, and giving Crowe notes for the balance. Branner proceeded to do business at the location, and under the license purchased from Crowe, until the expiration of the license. He then obtained a new location and a new license, moving the fixtures and such merchandise as was not disposed of from the old to the new location. Branner carried on his saloon business in his new
Appellant submits these questions: Can a personal judgment be entered against the garnishee, under the circumstances here present, without first pursuing the property, and without showing that the garnishee has sufficient property of the defendant under his control or in his possession to satisfy the judgment? The statute and its interpretation as found in our previous holdings answers each of these questions in the affirmative. The statute is found in Rem. & Bal. Code, § 5296 et seq. It provides that, in cases of all transfers of merchandise in bulk, or whenever substantially the entire business or an interest therein is disposed of, an
In Fitz Henry v. Munter, 33 Wash. 629, 74 Pac. 1003, and Kohn v. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. 941, we held that, when the statutory affidavit was not taken, the goods attempted to be disposed of by the sale remained the goods of the vendor, and as such in the hands of the vendee were to be regarded as a trust fund, and the vendee the trustee for the benefit of the creditors of the vendor. As in legal contemplation the sale to Sullivan was fraudulent, the possession resulting from the sale was wrongful. Sullivan’s position is in law no better than that of a purchaser of property for the purpose of defeating the just claims of his vendor’s creditors. He can retain neither the property, nor, in case of its sale, the money obtained therefrom. Millar & Co. w. Plass, 11 Wash. 237, 39 Pac. 956; Cowles v. Coe, 21 Conn. 220. And, since he was wrongfully in possession of the property or its equivalent, Sullivan stands as does any other person who has wrongfully converted property to his use. He cannot say the remedy of those entitled to the prop
It follows that the judgment must be affirmed.
Crow, C. J., Mount, Ellis, and Fullerton, JJ., concur.