Castleman v. Stryker
| Decision Date | 07 November 1923 |
| Citation | 109 Or. 207,219 P. 1084 |
| Parties | CASTLEMAN v. STRYKER ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by O. M. Castleman against H. F. Stryker and another and C A. Fryer, garnishee. Judgment for the garnishee, and plaintiff appeals. Reversed and remanded, with directions.
See also, 213 P. 436.
This is a garnishment proceeding. Upon the trial the circuit court made findings and rendered a judgment in favor of the garnishee, C. A. Fryer. From this judgment plaintiff appeals.
The facts relating to the proceeding are substantially as follows: In March, 1919, the plaintiff sold to H. F. Stryker defendant in the main action, the business, stock, and fixtures of a drug store, located at 129 Killingsworth avenue in Portland, Or. Stryker thereupon became indebted to the plaintiff, on account of a balance of the purchase price, in the sum of $3,250, which indebtedness was evidenced by two promissory notes signed by Stryker and his wife, dated March 5, 1919, and March 17, 1919, and each due two years after date. While thus indebted to the plaintiff, the defendant Stryker, on the 17th day of July, 1919, sold and delivered the business, stock, and fixtures of the drug store to the garnishee, C. A. Fryer, in bulk, for the consideration of $12,100, and on said date the garnishee, Fryer, paid Stryker on account of the consideration $8,000 cash, and delivered his negotiable promissory note for the balance of $4,100 payable two years after date thereof.
On the same date, at the time of paying the consideration, the garnishee received a bill of sale, upon the back of which was printed an affidavit, which was made by Stryker, in words and figures as follows:
No other affidavit was demanded or received by the garnishee. There were no creditors of the defendant, Stryker, other than the plaintiff, Castleman. At the time of the transfer of said stock and fixtures the garnishee inquired of his vendor if there were any unpaid claims against the store, and was assured there were none, and he subsequently inquired of some of the wholesale houses with whom the store dealt, the lessor of the premises in which the store was situated, the telephone company, and the employees of the store, and was informed they had no claims against the store. The garnishee made no inquiry as to the existence of any general creditors of the vendor, Stryker, and neither demanded nor received any list of creditors.
Neither the defendant, Stryker, nor the garnishee, Fryer, notified the plaintiff of the proposed sale and purchase of the drug store in bulk prior to the consummation thereof, but on the 18th day of July, 1919, the day after the sale, the vendor, Stryker, wrote the plaintiff a letter at Enterprise, Or., which letter was received by plaintiff two or three days later, and is in words and figures as follows:
In answer to this letter the plaintiff wrote Stryker, in substance, that he would send the notes evidencing his claim against Stryker to the Bank of Kenton for collection. Plaintiff did not notify Fryer of his claim against Stryker until he came to Portland, about November, 1919, nor take any steps to assert any claim against the stock and fixtures of the drug store until after he had put his claim against the Strykers in judgment. About the 15th day of September, 1919, Stryker discounted the $4,100 note, which he had received from Fryer, to the Aumsville State Bank.
The notes held by plaintiff against Stryker did not mature until March, 1921, but both provided that, if the interest was not paid when due, the holder might declare the whole sum of principal and interest due and collectable. Default was made in the payment of the interest, installments due on the 5th and 17th of March, 1920, and on the 22d day of March, 1920. Plaintiff instituted action against Stryker and his wife on the notes, and on the 30th day of November, 1920, plaintiff was awarded judgment for the amount of the notes, aggregating the sum of $3,955. On this judgment execution was issued on the 7th day of December, 1920, and delivered to the sheriff of Multnomah county, who served a notice of garnishment, together with a certified copy of the execution, on the garnishee, Fryer. The notice of garnishment notified the garnishee that the sheriff by virtue of the execution levied upon the stock and fixtures of the drug store aforesaid as the property of the defendant, Stryker. The garnishee thereupon furnished said sheriff with a certificate to the effect that he had no property in his possession or under his control belonging to the defendants, or either of them. The certificate being unsatisfactory to the plaintiff, an order of court was procured requiring the garnishee to appear before the court to be examined under oath concerning said certificate, and allegations and interrogatories were served on the garnishee. The garnishee answered the allegations and interrogatories, and plaintiff replied. On the day of trial the garnishee filed an amended answer to the allegations, alleging an affirmative defense, to which the plaintiff demurred. The demurrer to the affirmative defense being overruled, plaintiff replied. Upon the issues thus formed this cause was tried.
It was contended by plaintiff that as to him, as a creditor of the vendor, Stryker, the sale of the stock and fixtures of the drug store in bulk was fraudulent and void because the Bulk Sales Act was not complied with, and consequently the stock and fixtures in the hands of the vendee garnishee were subject to the execution as the property of the judgment debtor, Stryker.
The court below found the facts substantially as herein set out, and from the facts so found the court concluded, in substance: First, that the garnishee had complied with the Bulk Sales Act by demanding and receiving from his vendor a sworn statement to the effect that the stock and fixtures of the drug store had been paid for in full by said vendor; second, that the plaintiff had waived his right to avoid the sale from Stryker to Fryer under the Bulk Sales Act, and had elected to look to the defendants personally for the payment of his claim; third, that the garnishee is entitled to judgment to the effect that the sale in bulk in question was valid, and that the garnishee did not have, at the time of the garnishment, any property in his possession belonging to the defendants, or either of them. Judgment was rendered accordingly in favor of the garnishee.
Nels Jacobson, of Portland, for appellant.
Edward J. Brazell and E. B. Seabrook, both of Portland, for respondent.
BEAN, J. (after stating the facts as above).
Plaintiff's assignments of error relate in the main to the question as to whether the evidence supports the findings, and whether the judgment entered was the proper conclusion to be reached from the findings of facts made by the court. Plaintiff contends that there is no evidence or finding to support the conclusion of law that the Bulk Sales Act had been complied with; that there is no evidence or finding to support the conclusion of law that plaintiff had waived his right to avoid the sale in bulk from Stryker to Fryer, and had elected to look only to defendants personally for the payment of his claim; that there is no evidence to support the findings of fact that "plaintiff acquiesced in said sale and never, at any time, asserted any right in said stock or fixtures, or took any action or step to assert any such right, but on the contrary intended to and did look exclusively to defendants personally for payment of his demand"; that plaintiff was entitled to findings to the effect that no attempt was made to comply with the provisions of the Bulk Sales Act, as set forth in findings requested by plaintiff, and was also entitled to have the court find that the goods and fixtures in question were in possession of the garnishee at the time of the garnishment, and were of the value of $12,100, as set out in the ninth finding requested by plaintiff.
It is contended by Fryer, the garnishee, that the affidavit received by Fryer from Stryker before consummating the deal was, in effect, a verified statement by Stryker that he had no creditors at all; that when Stryker immediately after the sale wrote to plaintiff at Enterprise Or., and advised him of the sale, but informed him that the sale was not formally made and that as soon as it was consummated he would "take up the matter of the balance with you," plaintiff assented to the proposition, and, in effect, consented to Stryker's completing the sale and collecting ...
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