185 Ind. 623 | Ind. | 1916
— This is an appeal from an interlocutory order* adjudging appellants receivers of a mercantile stock, under the provisions of the Bulk Sales Act of 1909 (Acts 1909 p. 122; §§7471a-7471c Burns 1914).
Section 1 of the act makes void, as against creditors, a bulk sale of a stock of merchandise, unless the seller and purchaser, at. least five days before the sale, shall make a full detailed inventory, and unless the purchaser demand and receive from the seller a written list, made under oath, of the seller’s creditors, and also unless the purchaser give five days’ notice to creditors before taking possession. Section 3 of the act provides that a purchaser failing to comply with the above provisions shall, on a creditor’s application, become a receiver of the merchandise stock and be held accountable therefor to the creditors.
Appellees Hibben and Holweg, Alfred DeFries, and Foley So Company (a corporation) filed a complaint against appellants Peck and Graves and appellee Vernon Cyphers, in which it is alleged that plaintiffs were creditors of Cyphers when, on August 24, 1915, the latter sold his stock ©f merchandise, worth $3,500, to Peek and Graves; that there was no inventory of the stock made previous to the transfer of possession; that there was no notice given the creditors of the intended sale and that no
Counsel for appellee assert that the statute should receive a liberal construction, and that so construed the answer stated a defense. We hold otherwise. The answer treats the' provision of the statute requiring an inventory to be made by seller and purchaser as a nullity, and proceeds on the theory that a verbal statement of the seller that he had no creditors complied with the statutory requirement
Note. — Reported in 114 N. E. 216. Statutory requirements on sale of stock of goods in bulk, notes, 2 L. R. A. (N. S.) 331; 25 L. R. A. (N. S.) 758; 45 L. R. A. (N. S.) 495. Remedy of creditors where sale is made in violation of bulk sales law, notes, 39 L. R. A. (N. S.) 374; L. R. A. 1916B 974.