Rubenstein v. Lynchburg Shoe Co. , 125 Miss. 528 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

Joe Rubenstein, the husband of the appellant, was formerly engaged in a mercantile business in the town of Shaw, Miss., and purchased from the Lynchburg Shoe Company certain merchandise. A judgment was rendered in favor of the Lynchburg Shoe Company against J. Rubenstein. In 1915 Joe Rubenstein became a bankrupt and filed a voluntary petition in bankruptcy, but was not discharged from liability for debts in bankruptcy proceedings.

The trustee in bankruptcy proceeded to sell the entire stock of goods, and the same was bought by a firm in Memphis, Tenn., who paid the trustee the money for the goods bought. Thereafter, on the same day, this firm, who had purchased the stock, sold the same to Mrs. F. Rubenstein and instructed the trustee in bankruptcy to deliver the stock of goods to Mrs. Rubenstein, which he did, and she opened a business in Shaw, Miss., in which her husband, J. Rubenstein, worked in the capacity of manager.

Thereafter Mrs. Rubenstein moved her stock of goods to Doddsville, Miss., and some time thereafter signs were posted advertising a sale in which no initial was used. The husband, J. Rubenstein, worked in said store in Dodds-ville and was manager thereof, doing the buying and selling, and paying out all money in the name of F. Ruben-stein.

. The plaintiff in the judgment of Lynchburg Shoe Company against J. Rubenstein had a lot of shoes manufactured by 'the Lynchburg Shoe Company, and sold to J. Rubenstein, and which were in the stock of goods sold to Mrs. F. Rubenstein by the purchaser at the bankrupt sale, seized, under this judgment, as the property of J. Ruben-stein. Mrs. F. Rubenstein filed a claimant’s issue and gaye bond for the forthcoming of property seized.

On the trial in the circuit court on the claimant’s issue, a merchant in Doddsyille, who did business next door to Rubenstein, testified that J. Rubenstein conducted the business, that he did the buying and paying the money and seemed to haye full control, and that he thought he was oivner of the business. It is also in proof by J. Ruben-stein himself that he managed the business, doing the buying and selling in the name of F. Rubenstein to the same extent as if he owned the business. The privilege license was taken out in the name of F. Rubenstein; and J. Ruben-stein and F. Rubenstein, and the trustee in bankruptcy, all testified to the sale by the trustee to the Memphis firm, and the purchase by F. Rubenstein from said firm of said property.

It appears that there was no sign over the door or on the building in which the mercantile business was conducted at Doddsville to indicate whether the business was that of F. Rubenstein or J. Rubenstein. But the testimony shows that goods were bought and checks issued in the name of F. Rubenstein, on her funds, and that she gave her notes to the Memphis firm for the merchandise when she purchased same from said firm.

The circuit court gave a peremptory instruction in favor of the Lynchburg Shoe Company, plaintiff in execution, and in judgment against J. Rubenstein. We are advised that, the circuit court proceeded upon the idea that the sign statute of this state, section 4784, Code of 1906 (Hemingway’s Code, section 8128) was applicable to the case and constituted a justification for the peremptory instruction. This section reads as follows:

“3128 (4784). Business Sign, and What to Contain.— If a person shall transact business as a trader or otherwise, with the addition of the words ‘agent,’ ‘factor,’ ‘and company,’ or ‘& Co.,’ or like words, and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name without any such addition, all the property, stock, money, and choses in action used or acquired in such business shall, as to the creditors of any such person, be liable for his debts, and be in all respects treated in favor of his creditors as his property.”

In our opinion the sign statute is not applicable to this case. The goods involved passed into the possession of the trustee in bankruptcy and was sold by him to the Memphis firm, and the Memphis firm sold the goods to F. Ruben-stein, taking her notes for the purchase money.

On the adjudication of bankruptcy against J. Ruben-stein, the title to the property of J. Rubenstein .passed to the trustee in bankruptcy, and if the shoe company desired to establish any preference claim as to the property sold J. Rubenstein over the other creditors, it should have done so in the bankrupt court. The business, after the purchase from the Memphis firm of this stock, was opened in the name of F. Rubenstein and conducted thereafter in her name. No goods were sold to J. Rubenstein, or on the faith of his credit, or on the idea that he was the owner of the business, so far as this action is concerned.

Any person may employ a business manager for his business so long as the business is run in his own name and the goods bought and sold in such name; and the fact that J. Rubenstein acted as manager of the store, and that there was no sign indicating that F. Rubenstein was the real owner, considered alone, is insufficient to bring the case within the purview of the statute. It was, accordingly, error to give a peremptory instruction for the plaintiff in execution, but a peremptory instruction should have been given for the claimant, F. Rubenstein.

The judgment will be accordingly reversed, and judgment entered here for the appellant.

Reversed and rendered.