29 Ga. App. 543 | Ga. Ct. App. | 1923
The National Cash Register Company sold to Betts-Spurlin Company, a corporation engaged in mercantile business in Tifton, Georgia, a cash register, on credit, retaining title until payment of the purchase-money. Thereafter the Betts-Spurlin Company sold its stock of goods to one T. E. Stubbs, against whom the Cash Register Company, claiming there was no compliance with the “bulk-sales act,” instituted garnishment proceedings. The garnishee answered that it was not indebted to the defendant in any sum, nor had any property belonging to the defendant at the time of the service of the garnishment or thereafter. This answer was traversed by the plaintiff, and upon the trial of the issue thus formed the judge, at the close of the evidence, directed a verdict against the traverse and in favor of the garnishee; and to this ruling the plaintiff excepts.
The evidence showed that in the sale between the Betts-
The parties to the sale appear to have acted on the assumption
If the vendor in fact was insolvent, the Cash Register Company could, of course, have been forced to submit to an election, or a marshaling, but not’ all of its rights could have been thus disposed of. There was no presumption of law that the register was worth the amount of its debt, even though a substantial payment, the evidence shows, had been made, and in marshaling the assets of the debtor it would have been estimated at its true value only, with this creditor participating then with the others upon at least the balance of its claim. Lowry Banking Co. v. Empire Lumber Co., 91 Ga. 624 (5) (17 S. E. 968). It appears that the Cash Register Company did just this thing. It proceeded against the security
Nor was the notice given its attorney or obtained by him in the manner shown by the evidence sufficient to remove the operation of the statute. Mere knowledge by even the creditor itself of the things of which the purchaser is required to give notice in the manner prescribed (§ 3227) will not suffice. “The purchaser of merchandise in bulk is not relieved from the duty of notifying the creditors of the vendor of such proposed sale, as pie-, scribed by section 3227 of the Civil Code, by reason of a verbal notice given to them by the vendee himself.” Moultrie Grocery Co. v. Holmes-Hartsfield Co., 22 Ga. App. 512 (3) (96 S. E. 346). See, in this connection, Wyone Shoe Co. v. Daniels, 136 Ga. 192 (3) (71 S. E. 1). But really it hardly appears that the omission of the notice was due to a belief that it was rendered unnecessary by reason of the knowledge of the Cash Begister Company’s attorney, for Mr. Spurlin, the manager of the selling company, gave evidence as follows: “ Mr. Stubbs knew at the time that the Betts-Spurlin Company owed a sum of money to the National Cash Begister Company, and Mr. Smith knew it, but we thought they would prefer to retake the cash register in settlement of their claim, as I had paid $100 on it, rather than accept fifty per cent. It was after the negotiations had ended that Mr. Hargrett advised me that the National Cash Begister Company would accept only full payment of its debt. When the compromise was made and the stock of goods sold, I thought and expected that the National Cash Begister Company would accept my offer to return the cash register in settlement of the balance of the debt, as I had paid $100 on it. I did not regard this claim of the National Cash Begister Company as one in which Mr. Stubbs was interested, for the reason that the cash register was a part of the fixtures, and Mr. Stubbs did not buy the fixtures.” The garnishee testified: “ I did not give any sort of written notice to the National Cash Begister Company. Neither did I give any sort of personal notice. Eulwood & Hargrett had
The case does not fall within the ruling of Stovall Co. v. Shepherd Co., 10 Ga. App. 498 (73 S. E. 761); for there all the creditors were parties originally to the composition, and the sale was virtually made at their instance, if not altogether by their authority, and one of them thereafter sought to withdraw from the agreement, and to invoke the provisions of the act in regard to sales in bulk. The evidence in the case now before us demanded a finding that as to the Cash Eegister Company there was no compliance with the act as to notice; also that there is no estoppel of this company to insist upon the law as it is written. It did nothing by which any one was misled to his injury. The omission by the purchaser seems to have been entirely voluntary.
No matter how innocently the parties to the sale may have acted, and notwithstanding that the act is to be strictly construed, there is no other course but to enforce its provisions in a case where it is applicable, and where there has been no waiver by the creditor of the rights which are provided to him thereunder. Where in such a ease there is a failure of compliance by the purchaser, notwithstanding moral fraud may be altogether lacking, “such sale or transfer shall, as to any and all creditors of the vendor, be conclusively presumed to be fraudulent.” Civil Code (1910), § 3228.
We are obliged to hold that the evidence did not demand a ver
Judgment reversed.