188 Ind. 612 | Ind. | 1919
— This is an appeal from an interlocutory order appointing a receiver in a proceeding filed by appellee against appellant, wherein appellee demanded judgment in the sum of $7,500 and prayed an ‘order of court declaring appellant George Kraft Company to be a receiver of a stock of merchandise purchased by it in bulk from the Independent Five and Ten Cent Stores of New York. Appellee alleged that the Independent Five and Ten Cent Stores of New York was indebted to him in the sum of $7,500 at and prior to the date of its sale of said stock of merchandise to appellant as shown by a judgment of the LaPorte Circuit Court for that amount, and facts, are alleged showing that appellant purchased the stock and fixtures in bulk, and that it failed to comply with the provisions of §7471a Burns 1914, Acts 1909 p. 122, relating to such sales.
The sworn complaint and a certified copy of the judgment were introduced in evidence on behalf of plaintiff, and the defendants introduced certain affidavits as a defense. After a consideration of the evidence so introduced the court entered an order declaring and appointing appellant George Kraft Company receiver of the stock of goods so purchased from the Independent Five and Ten Cent Stores of New York for the benefit of plaintiff, and directing it to qualify as such receiver by filing bond in the sum of $10,000. From the order so entered this appeal is taken. The only question presented by the several errors assigned relates to the sufficiency of the evidence to sustain the finding on which the order is based.
Statutes regulating the sales of stocks of merchandise in bulk similar to the one on which this proceeding is based have been passed by nearly all of the states of this country. This widespread legislation on the subject indicates that there was a general belief in the existence of a prevalent evil which such legislation was intended
The first step required by the statute of the purchaser is that at least five days before the sale is to be consummated, he shall make a full and detailed inventory of the articles to be purchased, showing quantity and so far as possible in the exercise of reasonable diligence
Appellant’s affidavits show that after the list of creditors had been furnished, it caused all of the accounts payable, owing by the seller, to be paid out of the purchase money before taking possession, and that arrangements were made for the payment of the outstanding notes of the seller which were satisfactory to the holders of such notes. The statute does not provide that the purchaser shall have the option of giving the notice prescribed or of paying out of the purchase money the claims of the seller’s creditors appearing on the list and all others of which he has knowledge. When he takes the latter course, he does not comply with the statute, and he acts at his peril as to any creditors of the seller whose claims may not be included.
Finding no reversible error in the record, the judg-. ment is affirmed.
Note. — Reported in 125 N. E. 209.