Parker v. Tapscott ( 1926 )

ON SUGGESTION OF ERROR. We are of opinion that the bill of complaint in this case did not allege a case within the Bulk Sales Statute. Chapter 100, section 1, Laws 1908; Hemingway's Code, section 3129. The allegations of the bill with reference to the stock of goods is as follows:

"Complainant respectfully represents that the said C.A. Tapscott was, at the time of the filing of the said bill, the owner of a large stock of merchandise and a store which he was conducting at the town of Nettleton, at the time buying and selling large quantities of goods, the sole owner of the same, as your complainants are informed and believe, and that he so remained until very shortly before the final trial of said cause, when to defeat your complainants in the collection of their just obligation, and defeat the collection of the decree, which they were then certain to recover against him in right and justice, wrongfully and fraudulently pretended to sell, make over, and transfer to Miss Rosa Young, his sister-in-law, the pretended ownership and control of said stock of goods and store, though the said C.A. Tapscott all the while remained and still remains in management of the said business, and your complainant charges on information and belief that he is still in equity and good conscience the owner of the same."

The statute (section 3129, Hemingway's Code; Laws 1908, chapter 100, section 1) provides that a sale of any portion of a stock of merchandise, otherwise than in the ordinary course of trade, or in the regular and usual prosecution of the seller's business, and a sale of an entire stock of merchandise in gross, shall be presumed to be fraudulent and void as against the creditors of the seller, unless, at least five days before the sale, (a) the seller shall have made a full and detailed inventory, showing the quantity, and, so far as can be done by the exercise of reasonable diligence, the cost price to him of each article sold; and (b) the purchaser shall have in good faith made full and explicit demand of the seller for the name, place of residence, and business and post office address of each of his creditors, and the sum due each, and to which demand the seller shall have made full and truthful written answers; and (c) the purchaser shall have in good faith notified personally or by mail each of the seller's creditors, of whom he has knowledge or with the exercise of reasonable diligence could have acquired knowledge, of the proposed sale, and of the cost price of the merchandise proposed to be sold, and of the price to be paid therefor by the proposed purchaser.

This statute is in derogation of the common law and of the right to contract, and to bring a case within the statute the proposition which makes the sale fall within the statute should be averred, showing in substance the failure of the seller and purchaser to comply with the statute. The allegation as made is one of the ordinary fraudulent conveyance or creditors' bill allegation, and does not aver the failure of the defendant to comply with the statutory requirements. We think good pleading requires the pleader to set forth with sufficient certainty and clearness the facts constituting violation of this section, and that the court did not err in holding that the case made was not within the fraudulent sales of merchandise statute, supra.

It is also insisted that we erred in holding that the court did not commit error below in refusing to permit complainant to amend the bill after the evidence was closed in the court below. While ordinarily a party will be permitted to amend his bill, so as to conform to the case made by the evidence, still it is not reversible error to refuse to permit the bill to be amended, when the statute would not be applicable to the case, were the bill properly amended, so as to allege a violation of the statute.

In our opinion the statute does not apply to a sale of a stock of merchandise from one partner to another, and therefore that the court below did not err in refusing the amendment. The suggestion of error will therefore be overruled.

Overruled.