Butler Bros. v. Mason

• Decision Date: 16 January 1928
• Docket Number: 6105.
• Parties: BUTLER BROS. v. MASON et al.
• Court: South Dakota Supreme Court

217 N.W. 510

52 S.D. 349

BUTLER BROS. v. MASON et al.

No. 6105.

Supreme Court of South Dakota

January 16, 1928

Appeal from Circuit Court, Douglas County; R. B. Tripp, Judge.

Action by Butler Bros. against C. W. Mason and another. From a judgment for defendants and from an order denying a motion for new trial, plaintiff appeals. Reversed with direction.

Walker & Gurley, of Armour, for appellant.

E. P Wanzer, of Armour, for respondent.

BURCH P. J.

Prior to August 20, 1921, defendant Mason had been engaged in the photograph business in Armour, and in connection with the business sold musical supplies, cigars, confectionery, and notions. On that date, defendant Burnett bought Mason's business and property used in connection with the business. An attempt was made by the parties to this transaction to comply with the Bulk Sales Law. Plaintiff at the time was a creditor of Mason, and later brought this action to recover of Burnett, because it was claimed that Burnett had not complied with the Bulk Sales Law and was therefore liable to plaintiff under its provisions. Issue was joined, and on the trial the lower court found that Burnett had complied with the Bulk Sales Law (Rev. Code 1919, §§ 914-921) and was an innocent purchaser of the property, and rendered judgment dismissing the action as to Burnett. On appeal to this court the judgment was reversed, and the cause remanded. 47 S.D 308, 198 N.W. 560. After the remand, plaintiff objected to a retrial of the case and to the taking of any further evidence, and moved the court to strike out finding No. 8 and to amend the conclusion of law and render judgment in favor of plaintiff. The objection was overruled and motion denied. Finding No. 8 was the finding on which the reversal of the first appeal was based, and it is contended the remand left to the lower court no alternative, but was in effect a direction to the trial court to amend its findings and conclusions to conform to the views expressed in the opinion. The opinion concluded with these words, "remanded for further proceedings in harmony herewith." New evidence was taken, consisting principally of a schedule of the items of property purchased and a statement from Burnett that he did not purchase the property for the purpose of re sale in retail trade. The court again made findings of fact identical with those made on the first trial, except there was added thereto finding No. 9 to the effect that the property purchased consisted of two city lots with a photograph gallery building thereon and the furniture and studio equipment contained in said building and necessary for the running and operation of such photograph building, and was purchased for such purpose and not for the purpose of selling to customers, and thereupon concluded that the property purchased was not a "stock of merchandise" or of "merchandise and fixtures" as defined and contemplated by the Bulk Sales Law, and rendered...