Gallus v. Elmer , 193 Mass. 106 ( 1906 )

Hammond, J.

St. 1903, c. 415, provides that “ the sale in . bulk of any part or the whole of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller’s business, shall be fraudulent and void as against the creditors of the seller ” unless certain things are done by the seller and purchaser; and the question is whether the transaction which took place between the plaintiff and Kopec on June 9,1905, was within the statute. The requisites of the statute were not complied with by either the seller or the purchaser, and the transaction was clearly otherwise than in the ordinary course of the seller’s business.

The plaintiff however stoutly insists that the transaction in substance was not a sale, but simply the discharge by way of accord and satisfaction of a pre-existing debt due to him from Kopec. There can be no doubt that there was a discharge of the preexisting debt by way of accord and satisfaction; and if, after the transaction, the plaintiff had sued Kopec, the accord and satisfaction would have been a complete defence.

But the transaction had another phase, so far at least as respected Kopec’s other creditors. There was a change in the ownership of the property, which, if valid as against them, freed from liability property which theretofore could have been attached by them; and thus their security was impaired. While it is true that in its strictest sense a sale is a transfer of personal property in consideration of money paid or to be paid, still in the interpretation of statutes it is often held to include barter and any transfer of personal property for a valuable consideration. “ In a general and popular sense, the sale of an article signifies the transfer of property from one person to another for a consideration of value, ^without reference to the particular mode in which the consideration is paid.” Bigelow, C. J., in Howard v. Harris, 8 Allen, 297, 299. And accordingly it was held in that case that where the consideration for the transfer of the ownership of a horse consisted of intoxicating liquors which the buyer of the horse was not legally authorized to sell, the transaction was a sale within the meaning of a statute prohibiting the sale of intoxicating liquors.

We are of opinion that the statute in question was intended to prevent a- trader from disposing of his stock of merchandise in a manner outside his usual course of business, so that the same should be taken away from his creditors in general, and that the transfer under the circumstances disclosed in this case was a , sale although made to a creditor.

The plaintiff still further insists that the statute does not apply to the fixtures, and this view seems correct. The phrase “ stock of merchandise,” as used in the statute, properly and naturally describes articles which the seller keeps for sale in the usual course of his business. It does not naturally describe fixtures. It would hardly be within the usual course of business for a storekeeper at any time to sell his fixtures, and it is not to be presumed that the Legislature intended to prohibit the sale of a fixture, unless such intent is clearly expressed. The natural reading of the statute makes it applicable, as has been said, only to the articles which in the ordinary course of his business the seller keeps for sale, and that must be taken to be its legal meaning. See Albrecht v. Cudihee, 37 Wash. 206. It follows that the plaintiff may recover the fixtures replevied, but cannot hold the meats and provisions. Upon inspection of the record it appears that certain of the articles were fixtures and tools. For this reason the order must be

Exceptions sustained.