Carnaggio Bros. v. City of Greenwood

• Decision Date: 05 April 1926
• Docket Number: 25608
• Citation: 108 So. 141,142 Miss. 885
• Court: Mississippi Supreme Court
• Parties: CARNAGGIO BROS. v. CITY OF GREENWOOD. [*]

108 So. 141

142 Miss. 885

CARNAGGIO BROS. v. CITY OF GREENWOOD. ^[*]

No. 25608

Supreme Court of Mississippi

April 5, 1926

Division B

Suggestion of Error Overruled May 10, 1926.

1. FRAUDULENT CONVEYANCES. Bulk Sales Law held not to apply to sale of restaurant, where no merchandise is sold in transfer thereof (Hemingway's Code, section 3129 [Laws 1908 chapter 100]).

Section 3129, Hemingway's Code (Laws of 1908, chapter 100), does not apply to a restaurant being sold, where no merchandise is sold in the transfer of the restaurant.

2. PRINCIPAL AND AGENT. Business Sign Statute held not applicable to sale of restaurant operated, under name of "Elite Cafe," where merchandise was not sold in usual mercantile way, and there was no claim against property conveyed (Hemingway's Code, section 3128 [Code 1906 section 4784.])

Section 3128, Hemingway's Code (section 4784, Code of 1906) known as the Business Sign Statute, is not applicable to the case of a sale of a restaurant operated under the name of the "Elite Cafe," where merchandise is not sold in the usual mercantile way.

3. ELECTRICITY. Waters and water courses. City, operating public utility, such as electric lights or water supply, cannot require applicant for service to pay account made by another at place applied, for.

A city operating a public service utility, such as electric lights, water, etc., must furnish such service or commodity to the public under reasonable regulations, and it cannot require an applicant for such service to pay an account made by another person or corporation at the place applied for, in the absence of a statute regulating the power of individuals to make contracts in reference thereto. Ginnings v. Meridian Waterworks Co., 56 So. 450, 100 Miss. 507, Ann. Cas. 1914A, 540, cited.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Action by Carnaggio Bros. against the City of Greenwood begun in a justice court. From a judgment for the plaintiffs, an appeal was taken to the circuit court, and, from its judgment for the defendant, plaintiffs appeal. Reversed, and judgment rendered for the plaintiffs.

Judgment reversed.

Gardner, Odom & Gardner, for appellants.

I. There is no merit in the defense interposed by the defendant that this claim should have been first presented to the city to be by it allowed or rejected. Pyland v. Purvis, 87 Miss. 433.

So far as we have been able to find, there has been no revision of the law made since the decision of Pyland v. Purvis requiring claims against municipalities to be filed with the board of mayor and aldermen, or the councilmen, for allowance or rejection, before a suit can be brought.

II. Section 3129, Hemingway's Code, the Bulk Sales Law, expressly prohibits or makes void as against creditors of the seller, any stock or portion of stock of merchandise sold otherwise than in the ordinary course of trade, or in the regular and usual prosecution of the seller's business. In this case, the sellers, John Kiriaze and his partners, the proprietors of the Elite Cafe, were not merchants and did not sell any stock or portion of a stock of merchandise, and the bill of sale which was introduced by the defendant as an exhibit to the testimony of Mr. Dennis, expressly provides, "all merchandise and all flour, meal, bread, coffee, sugar and milk which are now on hand are expressly excepted from this conveyance," etc.

Any cafe or restaurant would, of necessity, have on hand such supplies of the kind and nature as excepted from this conveyance; and even though this had been included in the bill of sale, we do not think that the proprietors of the Elite Cafe would have been engaged in the merchandising business, so as to make a transfer by them to Carnaggio Brothers void as to their creditors.

III. Section 3128, Hemingway's Code, is the "Sign Statute." There is no evidence in this record to show that the name of any person appeared anywhere as the owner or proprietor of this business, or that any name with the additions mentioned in section 3128, Hemingway's Code, but to the contrary, the testimony shows the business was conducted as the "Elite Cafe."

It has been held by this court that the Sign Statute is not applicable to a hotel keeper. John Van Range Co. v. Allen, 7 So. 499, or to a woman keeping a restaurant and boarding house. Oliver v. Ferguson, 112 Miss. 521, 73 So. 569. Or to a person in the undertaking business. Sayers & Scovill Co. v. Doak, 127 Miss. 216, 89 So. 917. Or to the business of buying lumber, planing it for business purposes and reselling it. Yale v. Mfg. Co., 63 Miss. 596.

The court has held in several cases that this Sign Statute had no application whatever to any kind of business except that of merchandise and traders and persons ejusdem generis. Yale v. Taylor, 63 Miss. 598; Lyons v. Steele, 86 Miss. 261.

The purpose and scope of the statute is to protect creditors who furnish credit to a person doing business in violation of the statute on the idea that such person was the owner of the business. Before the Sign Statute can apply, it must be proved that the defendant is transacting business in his own name. Harris v. Robson, Black & Co., 68 Miss. 506.

In the case at bar, the defendant has not endeavored to collect any claim due it by the plaintiffs vendor, from any property conveyed or sold in violation of either one of these two statutes.

The City of Greenwood is under the same obligation to furnish lights and water to all persons in the City of Greenwood, who apply for the same and pay, or offer to pay, all lawful charges, as a public service or private corporation would be. It was the duty of the city when J. S. Carnaggio applied to the clerk of the City of Greenwood on April 4, 1925, to furnish him with electricity, to furnish the electricity as required upon his offer to comply with all regulations and to pay any and all lawful charges. 28 C. J., p. 332, sec. 28, "Electricity."

The receipt executed by the City of Greenwood and delivered to Carnaggio Brothers, through J. S. Carnaggio, and in evidence as an exhibit to the testimony of Mr. Dennis, shows that this money was paid by Carnaggio Brothers under protest; that the money was due by John Kiriaze et al. and that the city refused to furnish Carnaggio Brothers with electricity unless this bill was paid.

The obligation to furnish electricity in homes and business places in a city or town is the same as that for the furnishing of water or sewerage. Burke v. Water Valley, 87 Miss. 732; Ginnings v. Water Works Co., 100 Miss. 507.

This court has held that a waterworks company has no right to impose a penalty for the failure to pay water charges when due and that an extra charge of one dollar made against a delinquent is unreasonable and void. Ford v. Vicksburg Water Works Co., 102 Miss. 717.

Certainly, if a regulation which imposes a penalty of one dollar on a delinquent is unreasonable and void, a rule or regulation which requires the prospective patron to pay a delinquent charge against a former tenant or occupant of the premises then occupied by him would be unreasonable and void. M. F. Pierce, for appellee.

I. It is true that in certain instances that a city can be sued directly without first presenting the claim to the governing body of the city for allowance or rejection, but we submit that this is not one of the cases. This is true in the case of damages or torts. This is a case where there is an exercise of governmental function or discretion, and the city is not liable to suit. Clarksdale, etc. v. Caldwell Co., 80 Miss. 343, 31 So. 790; Holman v. Moore, 70 Miss. 267, 12 So. 23, 19 L. R. A. 222.

The case of Pyland v. Purvis, 67 Miss. 433, cited by appellant is not in point.

II. Appellants contend that the Bulk Sales Law, section 3129, Hemingway's Code, has no application here. The fact remains that the buyers bought all of said merchandise and the bill of sale expressly provided that it was convened to them and how it should be conveyed. We maintain that this transaction came within the purview of the Bulk Sales Law. By the very bill of sale they admitted that they were merchants and traders and said bill of sale so provides.

III. Appellants in their brief say: "There is no evidence in this record to show that the name of any person appeared anywhere as the owner or proprietor of this business, or that any name with the additions mentioned in contrary, section 3129, Hemingway's Code, but to the the testimony shows the business was conducted as the 'Elite Cafe.'" We accept their statement as true and by their own statement they admit that appellants herein did not comply with said Sign Statute. If they had put on their sign "Elite Cafe, J. S. Carnaggio, Vince Carnaggio and Tony Carnaggio, Proprietors and Owners," it would have been different, but they continued to use the same sign "Elite Cafe" and there was no way for any dealer to know from said sign who the owners or proprietors of said "Elite Cafe" were. We fail to see where a single case cited by appellants on this contention is applicable to the facts in this case.

The case at bar is a case where there was a public place which traded goods, bought and sold for profit cigarettes, coca cola, cold drinks, cigars, etc., and is entirely different from a private boarding house. "Merchants," as used in Act 1862, extending to two years the limitation on merchants' accounts, includes the keeper of a hotel who in the same house buys and retails liquors, tobacco, and other articles as an unrestricted business. Campbell v. Flinch, 63 Ky. 107, cited in Words & Phrases, (1 Ed.). See also City of Gulf port v. Stratokos, 90 Miss. 489, 43 So. 812.

IV. Appellants contend that if the Bulk Sales Law and the Sign Statute were applicable, ...