124 Tex. 238 | Tex. | 1934
delivered the opinion of the Commission of Appeals, Section A.
This controversy involves the Bulk Sales Statute (R. S., Art. 4001). The material facts shown in testimony and established by the implied findings of the trial court, are substantially as follows: On January 7, 1929, and for some years prior to that time, M. P. Hendrick and W. L. Hendrick, as partners, conducted in the town of Lamesa a retail grocery store. In connection with said business W. L. Hendrick conducted a meat market. The meat market fixtures belonged to W. L. Hendrick individually. On the date named the latter sold said meat market fixtures to J. M. Marks for a cash consideration. In respect to this sale, none of the provisions of the Bulk Sales Statutes was complied with. At that time W. L. Hendrick individually was indebted to Miss Johnston, the defendant in
Under the facts, liability of the corporation to Miss Johnston for any amount depends upon whether or not, in the case of a sale by the partnership, of property belonging to the firm, a creditor of an individual member of the firm is entitled to notice of the sale as prescribed in Bulk Sales Statute. Said statute reads as follows:
“The sale or transfer in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business otherwise than in the ordinary course of trade, and in the regular prosecution of the business of the seller or transferor, shall be void as against the creditors of the seller or transferor, unless the purchaser or transferee demand and receive from the transferor a written list of names and addresses of the creditors of the seller or*242 transferor with the amount of the indebtedness due or owing to each and certified by the seller or transferor under oath to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser or transferee shall at least ten days before taking possession of such merchandise or merchandise and fixtures, or paying therefor, notify personally or by registered mail each creditor whose name and address is stated in. said list, or of which he has knowledge of the proposed sale and of the price, terms and conditions thereof. Any purchaser or transferee who shall not conform to the provisions of this law shall, upon application of any of the creditors of the seller or transferor become a receiver, and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.”
There can be no doubt that as regards a sale of pratnership property, by the partnership, this statute contemplates creditors of the partnership, and not a creditor of one of the members of the firm. Ellis Jones Drug Co. v. Coker, 151 Miss., 102, 117 So., 545, 59 A. L. R., 285. The creditors with whom the statute deals are, in the terms of the statute, those of the “seller.” While it is true that a partnership is not legal entity, like a corporation, nevertheless the assets and liabilities of the partnership are commonly treated as possessing distinct characteristics. For example, under Article 2033 of the statute, partnership liability may be enforced against the firm and the partnership property reached, where but one of the members of the firm is served with citation in the suit. 32 Tex. Jur., 380-381. Again; property belonging to a partnership cannot be lawfully seized under execution against an individual member of the firm. R. S., 3796; Middlebrook v. Zapp, 79 Texas, 321. Still another example: funds and effects belonging to the partnership cannot be garnished for the separate debt of an individual member of the firm. Raley v. Smith, 73 S. W., 54 and authorities cited there; see also 20 Tex. Jur., p. 720. At the bottom of these cases lies the familiar doctrine established by general law, which is to the effect that no creditor but a creditor of the partnership is entitled to have the partnership assets, as such, appropriated to the satisfaction of his claim. The presumption obtains that in the enactment of the instant statute due regard was given to the general law, and that, as regards a sale by a partnership, the term “creditors of the seller” was intended to embrace none but those classed as partnership creditors under the general law.
With respect to J.. M. Marks, the trial court gave him judgment for $2,500 of said funds. According to the record before us, error in this respect depends solely on a question of law as to whether or not the purchase by him from W. L. Hendrick, on January 7, 1929, of the market fixtures belonging to the latter individually, falls under the Bulk Sales Statute. The particular inquiry is whether or not a sale which does not embrace merchandise as part of its subject matter, and in nowise involves a sale of merchandise, is contemplated by the provisions of said statute which read: “The sale or transfer in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures, pertaining to the conducting of said business otherwise than in the ordinary course of trade, and in the regular prosecution of the business of the seller or transferor, shall be void as against the creditors of the seller or transferor, unless” etc. It reasonably appears that these provisions primarily regard sales of merchandise which are made “otherwise than in ordinary course of trade and in the regular prosecution of the business of the seller or transferor.” The provisions, in terms, deal with fixtures only in relation to a sale or transfer of merchandise. The terms of the provisions do not reasonably apply to fixtures except in conjunction with merchandise, for otherwise the provision excluding sales and transfers made in the ordinary course of trade and in the regular prosecution of the business of the seller would involve a contradiction of terms. For the business of the seller could not be the selling of fixtures where he is not engaged in such business; and he could not make a sale of fixtures in the regular prosecution of such business. It is only in cases involving a sale of merchandise, by one engaged in that business, that the provision respecting fixtures can have any application at all.
The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.
Opinion adopted by the Supreme Court, November 28, 1934.