88 So. 435 | Ala. | 1921
Plaintiffs, M. Cohen Sons, brought this action on a promissory note executed by Joseph Saks and Pizitz-Saks Mercantile Company, a corporation. A plea of bankruptcy filed by Joseph Saks was not contested, and he went out of the case. It was alleged and admitted that defendant corporation had been organized under the name of Pizitz-Saks Mercantile Company, and that subsequently to the execution of the note in suit had changed its corporate name to Pizitz Mercantile Company. The defense was that defendant corporation had executed the note as surety for Joseph Saks, and not otherwise, and that such a contract was ultra vires the corporation, and in that event the parties appear to agree that defendant was not bound. See Buck Creek Lumber Co. v. Nelson,
There was evidence going to show that the parties to the sale by Saks Co. to Pizitz-Saks Mercantile Company complied, or attempted to comply, with the act of March 9, 1911 (Acts 1911, p. 94), regulating the sale of stocks of merchandise in bulk, and thereupon the brief for defendant, appellant, seems to contend that the sale should, as matter of law, be declared not fraudulent, and so that plaintiffs surrendered no legal right when they accepted the note in suit. The effect of the Bulk Sales Law, supra, is from noncompliance to raise a presumption of administrative procedure, a rebuttable presumption of law that the sale was fraudulent as to creditors. Terry v. McCall, Co.,
In the view we have been able to take of the record error cannot be predicated of the action of the court in granting a new trial.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.