Hartwig v. Rushing

182 P. 177 | Or. | 1919

HARRIS, J.

When Rushing bought the store with its stock of hardware he did not receive or demand from the seller a written statement under oath, containing the names and addresses of the creditors, or a statement showing the indebtedness due or to become due from the seller. Some of the merchant creditors had actual notice and assisted in invoicing the stock of goods; and it may fairly be inferred that nearly all, if not all, the merchant creditors acquired a knowledge of what Bushing and Hartwig were doing before the invoice was completed and the stock transferred to Bushing.

It is proper to note also that after Bushing paid $4,367.34 to the merchant creditors of George Hart-wig and after the latter turned over to his creditors the $1,500 collected by him, his remaining indebtedness consisted of the Miller note, the note to his brother, and only three or four hundred dollars presumably due merchant creditors.

It is not necessary to enumerate in detail all the obstacles which contributed towards delaying the commencement of this suit, but it is enough to say that we approve the finding of the trial court that the plaintiff “has acted promptly.”

George Hartwig is insolvent and has no money or other property.

J ohnie Gertrude Bushing knew as early as the latter part of August, 1911, that her husband “was expecting or was thinking of making the deal with Mr. George Hartwig.” When asked “In the business transactions of your husband that he had not only with this man but with others, were they talked over between you, these business affairs?” she answered, “Very thoroughly Mr. Bushing went through them.” She stated also that her husband was “very confidential with” her “in reference to his business affairs,” and that she was ‘ ‘ at Aurora and was around the store a great deal when the inventory was being taken.”

It was contended throughout the trial that Johnie Gertrude Bushing loaned $5,000 to her husband before he came to Oregon and that the Cherrydale lots were conveyed to her in satisfaction of that indebtedness. A careful reading of the whole record convinces us, however, that the trial judge who saw and heard the witnesses, correctly found that “no consideration was paid for” the Cherrydale lots by Johnie Gertrude Bushing or for the Overlook lot by Maxine C. Bushing “and that the conveyances to them were voluntary conveyances” and that Johnie Gertrude Bushing had full knowledge of all the facts surrounding the purchase of the Hartwig store.

The bulk sales law, as originally enacted in 1899, consisted of four sections and was a counterpart of a number of the bulk sales statutes which at about that time were passed by the legislatures of many of the states. Our statute was amended in 1901 and in 1905 and, as amended, was carried into the Code as Sections 6069 to 6072, L. O. L., inclusive. The act was again amended by Chapter 281, Laws of 1913; but in 1911, when George Hartwig sold the hardware store to C. C. Bushing, Sections 6069 and 6070, L. O. L., which are especially pertinent here, read as follows:

‘ ‘ Section 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 of 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 snch creditors, a written statement under oath to that 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.

“Section 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 defiver 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.”

1. It is contended that the statute only applies to a “sale” as distinguished from a “barter or exchange” of personal property and that the bulk sales law applies only to transfers “for cash or on credit”; that the transfer of the store to Rushing was not a sale “for cash or on credit”; and that therefore the transaction was not in violation of the bulk sales law.

2. In legal nomenclature the term “sale” is used in a restricted and also in a broad sense. The controversy presented by this appeal does not require an attempt to determine whether the word “sale” when technically and exactly defined is confined to the restricted sense or comprehends the broad meaning. When employed in its restricted sense it means a transfer of title for money: Huthmacher v. Harris’ Admrs., 38 Pa. St. 491 (80 Am. Dec. 502). There are numerous transactions where the word “sale” must, because of the very nature of the business, be given its restricted meaning, as, for example, powers of attorney and the like: Coulter v. Portland Trust Co., 20 Or. 469, 481 (26 Pac. 565, 27 Pac. 266); Colgan v. Farmers & Mechanics’ Bank, 59 Or. 469, 480 (106 Pac. 1134, 114 Pac. 460, 117 Pac. 807); Mora v. Murphy, 83 Cal. 12 (23 Pac. 63). When used in its broad sense the term “sale” includes the transfer of personal property for a consideration estimated in money. There are many authorities which define a sale of personal property as the transfer of a chattel from the seller to the buyer for a price, or a consideration estimated in money; and consequently under that definition if property is1 taken at a fixed money price, the transfer is a sale whether the fixed money price is paid in cash or iu goods. A barter or exchange of properties occurs where one article is exchanged for another, no price in money being fixed upon either: 35 Cyc. 25, 40; 17 Cyc. 830; 1 Mechem on Sales, §§ 1 and 13; 23 R. C. L. 1185, 1186; Picard v. McCormick, 11 Mich. 68; Huff v. Hall, 56 Mich. 456 (23 N. W. 88); Fuller v. Duren, 36 Ala. 73 (76 Am. Dec. 318); Thornton v. Moody (Tex. Civ. App.), (24 S. W. 331); Jordon v. Dyer, 34 Vt. 104 (80 Am. Dec. 668); Loomis v. Wainwright, 21 Vt. 520; Borland v. Nevada Bank, 99 Cal. 89 (33 Pac. 737, 37 Am. St. Rep. 32).

The word “sale” is sometimes used in what may he termed its popular sense, and when so used signifies the transfer of property from one person to another for a consideration of value, without reference to the particular mode in which the consideration is paid; and as stated in Gallus v. Elmer, 193 Mass. 106, 109 (78 N. E. 772, 8 Ann. Cas. 1067), in the interpretation of statutes the word “sale” is often given its popular signification and “held to include barter and any transfer of personal property for a valuable consideration”: Howard v. Harris, 8 Allen (Mass.), 297; James v. State, 124 Ga. 72 (52 S. E. 295); Howell v. State, 124 Ga. 698 (52 S. E. 649); Commonwealth v. Clark, 14 Gray (Mass.), 367, 372. See "Webster’s Dictionary.

3. Ordinarily the word “cash” means money and yet it has been held that “in sales” it “is frequently used as a term meaning the opposite of credit”: Lee v. Cutrer, 96 Miss. 355, 366 (51 South. 808, Ann. Cas. 1912B, 478, 27 L. R. A. (N. S.) 315).

When examihing this statute we must read it in its entirety and construe the words found in it in the light of the manifest intent of the legislature; and when all the language of the act is so read and considered it becomes plain that the lawmakers did not intend that the statute should be limited to a “sale” for “cash or on credit. ’ ’ The enactment opens by declaring that it shall be the duty of every person who shall “bargain for or purchase.” The words “bargain for or purchase,” and especially the word “purchase,” are terms of broad signification. If the statute contained no other words than “for cash or on credit,” then that language would probably limit what precedes it and it would quite likely be necessary to hold that the act applied only to a “bargain” or “purchase” made “for qash or on credit”; but the statute does contain other words, some of which are coextensive in meaning with the words “sale” and “cash” while others are more comprehehsive. In Section 6069 we read that the purchaser must demand and receive a written statement “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. ’ ’ The same language, last quoted, appears a second time in Section 6070. It will be observed that the disjunctive conjunction “or” is employed; that not only the word “paying” but also the word “delivering” is used; and that in addition to the words “purchase price” the word “consideration” is employed. It is true that the language which has been quoted from Sections 6069 and 6070 is stated a third time in Section 6070 and in the third statement of it the word “consideration” is omitted. The words “purchase price,” however, appear in each of the three statements and those words, if they stood alone, would be sufficient to include sales for the equivalent of money as well as sales for money: 31 Cyc. 1171; 32 Cyc. 1264; and when to the words “purchase price” is added the word “consideration,” and these words are always stated disjunctively, it becomes apparent that the legislative mind intended the statute to apply not only to transactions involving the “paying” of “money” or the “delivering” of notes or other evidence of indebtedness but also to the “delivering” of such “consideration” as is the equivalent of money. This conclusion is further supported by other language found in three of the four sections of the enactment; for nowhere in the enactment is the word “sale” found alone, but in every instance it appears in company with the word “transfer” and the two words are invariably stated in the alternative because the language is always thus: “Sale or transfer.” Moreover, in Section 6072, L. O. L., we read: “Sold or conveyed.” While there is judicial authority for holding that the language of the statute is sufficiently appropriate to include a pure barter, still we prefer to postpone the decision of that question until a case is presented requiring an adjudication of that question. However, we have no hesitancy in declaring that the statute applies not only to sales for money but also to sales for property measured in money or, in the words of the boohs, for the equivalent of money or money’s worth. The stock of goods was invoiced at a fixed price in money; the furniture was measured in terms of money; and the prune orchard was valued in dollars. A price in money was placed upon every article of property involved in the transaction; and hence the bulk sales law applied to the transfer of the stock of hardware.

4. It is next argued that the bulk sales law protects none but mercantile creditors. Sections 6069 and 6070 speak of “all of the creditors”; Section 6071 refers to “all of his creditors”; and Section 6070 emphasizes the requirements of the statute by declaring that a “purchase, sale, or transfer” made without compliance with the act shall be conclusively presumed fraudulent and void as to “any and all creditors.” These words, to which attention has been directed, are plain, unequivocal and unambiguous. They construe themselves. They comprehend all creditors. No distinction is made between classes of creditors: Galbraith v. Oklahoma State Bank, 36 Okl. 807 (130 Pac. 541); People’s Savings Bank v. Van Allsburg, 165 Mich. 524 (131 N. W. 101); Eklund v. Hopkins, 36 Wash. 179 (78 Pac. 787); Joplin Supply Co. v. Smith, 182 Mo. 212 (167 S. W. 649, 654). Indeed, in one jurisdiction it has been held that a statute is unconstitutional if it attempts to protect mercantile creditors only: McKinster v. Sager, 163 Ind. 671 (72 N. E. 854, 106 Am. St. Rep. 268, 68 L. R. A. 273).

5. The appellants argue that William H. Hartwig was not entitled to notice, for the reason that the note did not become due until five years after date. This argument is completely answered by the plainest kind of language appearing in the statute itself;.for it is said in Section 6069, L. O. L., that the written statement must show the amount of the indebtedness due or owing, or “to become due or owing.” The statute is in favor of all creditors and includes those whose demands are not yet due as well as those whose demands are overdue: Hillsboro National Bank v. Garbarino, 82 Or. 405, 411 (161 Pac. 703); Calkins v. Howard, 2 Cal. App. 233 (83 Pac. 280); 12 R. C. L. 492.

6. The appellants insist with much vigor that the plaintiff is not entitled to the relief sought by him, even though it be decided that he was a creditor within the meaning of the statute. Section 6070, L. O. L., provides that any “purchase, sale, or transfer” made without observing the requirements of the bulk sales law shall, as to any and all creditors of the seller, “be conclusively presumed fraudulent and void.” Failure to comply with the statute results in a conclusive presumption of fraud; and the effect of this conclusive presumption is not only to relieve the creditor from the necessity of proving actual fraud but also to preclude the buyer from gainsaying the presumption: Goodwin v. Tuttle, 70 Or. 424, 432 (141 Pac. 1120); Galbraith v. Oklahoma State Bank, 36 Okl. 807 (130 Pac. 541); Calkins v. Howard, 2 Cal. App. 233 (83 Pac. 280); Joplin Supply Co. v. Smith, 182 Mo. App. 212 (167 S. W. 649, 654); Glantz v. Gardiner, 40 R. I. 297 (100 Atl. 913, L. R. A. 1917F, 226, 228). When a transfer of property is fraudulent as to the creditors of the seller certain remedies are available to the creditors and those remedies are made available because of the fraud. If fraud is the element which determines the right of the creditor to a remedy then on principle the same remedy which would afford relief against actual or common-law fraud should be equally available for relief against conclusively presumed or statutory fraud. It is true that moral turpitude is present in one instance and is absent in the other and yet fraud is present in each instance; and it is the presence of this fraud that confers the right to relief and, as was said in Rothchild Bros. v. Trewella, 36 Wash. 679 (79 Pac. 480, 104 Am. St. Rep. 973, 68 L. R. A. 281).

“We can discover no logical distinction between the different classes of conveyances which the common and statutory laws declare fraudulent. The remedy afforded an injured creditor must, .upon principle, be the same in all cases, unless the legislature has provided a different remedy.”

If a transfer is fraudulent it makes no difference whether it is common law or statutory fraud; for in either event the general rule is that the creditor who has not reduced his claim to a judgment against the seller and debtor or has not obtained a lien cannot sue the purchaser directly, as on a personal liability: Rothchild Bros. v. Trewella, 36 Wash. 679 (79 Pac. 480, 104 Am. St. Rep. 973, 68 L. R. A. 281); Morton v. Denham, 39 Or. 227, 240 (64 Pac. 384); Rogers’ Milling Co. v. Goff etc. Co., 46 Olk. 339 (148 Pac. 1029); Bewley v. Sims (Tex. Civ. App.), (145 S. W. 1076); Goodwin v. Tuttle, 70 Or. 424, 430 (141 Pac. 1120); Joplin Supply Co. v. Smith, 182 Mo. App. 212 (167 S. W. 649, 654); 12 R. C. L. 645. However, Daly v. Sumpter Drug Co., 127 Tenn. 412 (153 S. W. 167, Ann. Cas. 1914B, 1101), seem's to furnish, authority for an exception to this general rule if the purchaser has disposed of the goods or so intermingled them with other property as to render them indistinguishable.

If the fraudulent grantee still has in his possession the identical property which was transferred from the debtor, not much difficulty is encountered'by the creditor ; for he may if he wishes sue the debtor and attach the stock of goods in the hands of the fraudulent purchaser on the theory that as between the purchaser and the creditor the property still belongs to the debtor: Bank of Colfax v. Richardson, 34 Or. 518, 540 (54 Pac. 359, 75 Am. St. Rep. 664); 20 Cyc. 656, 661. This rule finds frequent illustration not only in cases of common-law fraud but also in cases of statutory fraud resulting from a failure to observe bulk sales laws: Oregon Mill & Grain Co. v. Hyde, 87 Or. 163, 170 (169 Pac. 791); Owosso Carriage & Sleigh Co. v. McIntosh & Warren, 107 Tex. 307 (179 S. W. 257, L. R. A. 1916B, 970); Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1 (62 S. E. 82); Moultrie Grocery Co. v. Holmes-Hartsfield Co. (Ga. App.), (96 S. E. 346); Coffey v. McGahey, 181 Mich. 226 (148 N. W. 356, Ann. Cas. 1916C, 923). In many jurisdictions a common-law fraudulent transferee may be held to the liability of a garnishee or trustee on account of the property so conveyed, or the proceeds if he has disposed of the same: 20 Cyc. 663; Sabin v. Michell, 27 Or. 66 (39 Pac. 635). Difficulties at once arise, however, when it is ascertained that the fraudulent grantee has disposed of the property which was transferred from the debtor. Although in cases of common-law fraud a creditor who has reduced his claim to judgment usually can avail himself of some sort of remedy, the ^adjudications do not entirely agree upon the procedure to be followed by the creditor: 12 R. C. L. 646; 20 Cyc. 262.

As between the creditor and the purchaser the transfer of a stock of goods in bulk is fraudulent and void; the goods are treated as the property of the debtor; and therefore the goods are regarded as a trust fund in the hands of the purchaser and he is viewed as a trustee for the benefit of the creditors. If the purchaser disposes of that trust fund, then it is entirely logical to say that he holds the proceeds as a trust fund and that the creditors may reach those proceeds to the same extent that they could have reached the fund before a change in its form was effected. The following authorities give support to this rule: Fitz Henry v. Munter, 33 Wash. 629, 634 (74 Pac. 1003); Kohn v. Fishback, 36 Wash. 69 (78 Pac. 199, 104 Am. St. Rep. 941, L. R. A. 1917F, 234); In re Gaskill (D. C.), 130 Fed. 235, 236; In re Connor (D. C.), 146 Fed. 998; Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1 (62 S. E. 82); Moultrie Grocery Co. v. Holmes-Hartsfield Co. (Ga. App.) (96 S. E. 346); Coffey v. McGahey, 181 Mich. 225 (148 N. W. 356, Ann. Cas. 1916C, 923, 925); Flechheimer-Keiffer Co. v. Burton, 128 Tenn. 682 (164 S. W. 1179, 51 L. R. A. (N. S.) 343, 345); Oregon Mill & Grain Co. v. Hyde, 87 Or. 163, 170 (169 Pac. 791).

William H. Hartwig reduced his claim to a judgment before he began this suit and that fact plus the fact that George Hartwig is insolvent and utterly without assets entitled "William H. Hartwig to avail himself of an equitable remedy: Fleischner v. First Nat. Bank, 36 Or. 553, 563 (54 Pac. 884, 60 Pac. 603, 61 Pac. 345); Bowman v. Sherrill, 59 Or. 603, 604 (117 Pac. 1122).

Johnie Gertrude Bushing took title to the three lots in Cherrydale Addition with knowledge of the circumstances surrounding the* transfer of the hardware store; the conveyance to Johnie Gertrude Bushing and the transfer to the daughter Maxine C. Bushing were voluntary conveyances without consideration; and, therefore, each of those grantees stands in the shoes of C. C. Rushing: Porter v. O’Donovan, 65 Or. 1, 10 (130 Pac. 393); 20 Cyc. 627, 646, 650.

The three lots in Cherrydale Addition and the one lot in Overlook Addition are the equivalent of the hardware store. The stock of goods was transmuted into land consisting of the four lots. The record title to those lots was never in the name of C. C, Bushing although the paper title is now in the name of persons standing in the shoes of C. C. Bushing and in these circumstances the plaintiff was clearly entitled to resort to a suit in equity: 20 Cyc. 676; Jimmerson v. Duncan, 48 N. C. 537; Wright v. Douglass, 3 Barb. (N. Y.) 554; Maynard v. Hoskins, 9 Mich. 485; Webster v. Folsom, 58 Me. 230.

Additional problems would be presented for solution if the purchase price had been less than the* total indebtedness of George Hartwig; but none of the questions which might arise out of that and kindred situations are involved here.*

The decree appealed from is affirmed.

Affirmed.

McBride, C. J., and Benson and Burnett, JJ., concur.

Case Details

Case Name: Hartwig v. Rushing

Court Name: Oregon Supreme Court

Date Published: Jul 1, 1919

Citation: 182 P. 177

Court Abbreviation: Or.