Peterson v. Doak

43 Wash. 251 | Wash. | 1906

Root, J.

Respondent brought suit to recover possession of certain goods taken by the appellant, as sheriff, under a writ of attachment, issued in an action wherein the Washington Liquor Company was plaintiff and Bred Lucas and James Lucas, as partners under the firm name of Lucas Brothers, were defendants. A trial before the court without a jury was had, and findings of fact and conclusions of law duly entered favorable to respondent, upbn which judgment was rendered. From this an appeal is taken.

From the findings of fact, to which no exception is taken, the following appears: Fred Lucas was engaged in the saloon business at Rosalia, and being in failing circumstances and indebted to respondent in tbe sum of $757 for wines, liquors and cigars, executed and delivered to respondent a bill of sale of all of bis wines, liquors and cigars, being his entire stock and being composed partially of tbe identical goods for wbicb be was indebted to respondent, and of tbe value of $600. Neither at tbe time said goods were sold to respondent, nor at any other time, did tbe latter ask for or receive from said Lucas an affidavit or list of creditors, as provided for under tbe provisions of chapter 109, Laws 1901, p. 222. Respondent voluntarily paid tbe creditors of said Lucas living at Rosalia, but did not piay or secure tbe other creditors, of whom there were several," one being said Washington Liquor Company.

It is urged by appellant that tbe sale and transfer of tbe entire stock by Lucas to respondent, without an affidavit and list of creditors being demanded or given, was absolutely void on account of tbe “sales-in-bulk” statute. Respondent maintains, however, that this statute has no application to tbe facts of this case. It does not applear from tbe findings that tbe Washington Liquor Company was a creditor of either Fred Lucas or Lucas Brothers, at tbe time of tbe sale, or at any other time, except by inference. Hence, tbe question of whether respondent complied with tbe “sales-in-bulk” statute becomes immaterial. Whitehouse v. Nelson, ante, p. 174, 86 Pac. 174. But, aside from this, it being unquestioned under tbe findings that Fred Lucas was a creditor of respondent, and that tbe amount of goods wbicb he turned over was less in value than tbe amount of bis indebtedness to respondent, it must be held, under former decisions of this court, that the transfer was justified. In the case of Vietor v. Glover, 17 Wash. 37, 48 Pac. 788, 40 L. R. A. 297, this court, among other things, said:

“It' is tbe established law of this state that an individual, although insolvent or in failing circumstances, may pay or secure one or more creditors to the exclusion of others equally meritorious, even if by so doing he exhausts the whole of his property.”

The stock turned over by Lucas to respondent being insufficient to satisfy the indebtedness to the latter, there was nothing for respondent to pay over to other, creditors. Consequently there would be no occasion for his> demanding the affidavit and list of creditors required by the statute. There being no sale or transfer of goods in bulk within the meaning of the “sales-in-bulk” law, and there being no contention that the sale was otherwise illegal, we find no error in the judgment.- It is therefore affirmed.

Mount, G. J., Crow, IIadley, Dunbar, Rudkin, and Fullerton, JL, concur.