Carstarphen Warehouse Co v. Fried

• Decision Date: 22 December 1905
• Citation: 124 Ga. 544,52 S.E. 598
• Parties: CARSTARPHEN WAREHOUSE CO. v. FRIED et al.
• Court: Georgia Supreme Court

52 S.E. 598

124 Ga. 544

CARSTARPHEN WAREHOUSE CO.

v.FRIED et al.

Supreme Court of Georgia.

Dec. 22, 1905.

Fraudulent Conveyances—Sale in Bulk— Remedies of Creditors—Attachment—Injunction—Receiver.

A sale of a stock of merchandise in bulk, not in compliance with the provisions of the act approved August 17, 1903 (Acts 1903, p. 92), is void as to creditors on the ground of fraud; and a creditor of the vendor may proceed by attachment against his fraudulent debtor. It appearing from the allegations of the petition that the plaintiff's statutory remedy by attachment against the fraudulent debtor was both available and complete, the prayer for the extraordinary remedies of injunction and receiver was properly denied.

[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, §§ 665, 681, 682; vol. 42, Cent. Dig. Receivers, § 12.]

(Syllabus by the Court,)

Error from Superior Court, Bibb County, W. H. Felton, Jr., Judge.

Action by T. J. Carstarphen, doing business as the T. J. Carstarphen Warehouse Company, against J. R. Fried and others. Judgment for defendants, and plaintiff brings error. Affirmed.

A petition for injunction and the appointment of a receiver was filed by T. J. Carstarphen, who conducted business under the name and style of the T. J. Carstarphen Warehouse Company, in which J. R. Fried, of Bibb county, and the firm of J. F. Williams & Son, of Wilkinson county, were named as defendants. The proceeding was brought in the superior court of Bibb county, and the facts alleged by the plaintiff as entitling him to the equitable relief sought were substantially as follows: The defendant firm is indebted to the plaintiff in the principal sum of $119.22 upon a promissory note dated February 17, 1905, and due March 1st after date. He is engaged in the wholesale grocery business in the city of Macon, and this note was given to him by J. F. Williams & Son in liquidation of an account for merchandise sold to that firm, which at the time was engaged in conducting a general merchandise store at McIntyre, Ga. Some time in the month of February or March, 1905, Pried purchased of J. F. Williams & Sou the whole of the stock of goods, wares, and merchandise belonging to that firm, and is now in possession thereof, except so much of the same as he has disposed of since the date of his purchase. He did not, at least five days before the completion of the purchase or the payment for this stock of goods, notify personally or by registered mail the plaintiff and other creditors of the proposed sale, the price to be paid, and the terms and conditions thereof, nor furnish them with a statement of the assets and liabilities of the firm, as required by section 2 of the act approved August 17, 1903 (Acts 1903, p. 93). The sale to Fried is absolutely fraudulent and void as to the plaintiff and the other creditors of J. F. Williams & Son, and the stock of goods in the hands of Fried and the money derived from his sale of a portion of the goods constitute a trust fund which is subject to the payment of plaintiffs demand and the debts due to other creditors of the firm. It is insolvent, as also are its members, J. F. and W. L. Williams. Fried received a discharge in bankruptcy in August, 1904, and the plaintiff "believes that the said J. R. Fried is now insolvent." He is rapidly selling out and disposing of the stock of goods. The plaintiff alleged that unless Fried was restrained from disposing of the goods, and a receiver was...