Charles J. Off & Co. v. Morehead

• Decision Date: 18 June 1908
• Citation: 235 Ill. 40,85 N.E. 264
• Court: Illinois Supreme Court
• Parties: CHARLES J. OFF & CO. v. MOREHEAD.

235 Ill. 40

85 N.E. 264

CHARLES J. OFF & CO.

v.MOREHEAD.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Logan County Court; Donald McCormick, Judge.

Assumpsit by Charles J. Off & Co. against Della I. Morehead.Attachment was issued and levied on goods formerly belonging to defendant, and Wilbur Gehres interpleaded, claiming the goods attached.There was a judgment for the interpleader in the attachment suit, and for plaintiff in the assumpsit action, and the latter appeals.Affirmed.Winslow Evans and George J. Jochem, for appellant.

A. D. Cadwallader, for appellee.

This is an action in assumpsit and attachment brought by Charles J. Off & Co. against Della I. Morehead.A writ of attachment was issued upon an affidavit alleging that the defendant had within two years fraudulently conveyed and disposed of her property so as to hinder and delay her creditors, contrary to the provisions of an act entitled ‘An act to prevent sales of merchandise in fraud of creditors,’ approved May 13, 1905, and in force July 1, 1905.This attachment writ was levied upon a stock of groceries which had formerly belonged to the defendant.To the declaration in assumpsit, which consisted of the common counts, a plea of the general issue was interposed.The affidavit for attachment was traversed and issue joined on the traverse.After the seizure of the stock of merchandise by virtue of a writ of attachment, Wilbur Gehres, by leave of court, interpleaded, and by his interplea averred that the said stock of merchandise attached and seized by virtue of the writ of attachment was at the time it was so attached and seized, and still was, the property of him, the said Wilbur Gehres, and not the property of the said Della I. Morehead.To the interplea Off filed a replication, denying that the property seized was the property of the interpleader, and averring the same to be the property of Della I. Morehead.This replication concluded to the country, and upon it issue was joined.A jury was waived by the parties as to the issues on the declaration in assumpsit and the issues on the affidavit in attachment, and these issues were tried by the court.A jury was impaneled to try the issue on the interplea.Upon the hearing of that issue the jury found a verdict in favor of the interpleader.The court found for the plaintiff in the action of assumpsit and assessed his damages at $288.81.Upon the issue as to the attachment the finding of the court was for the defendant.A judgment having been rendered upon the verdict of the jury finding Wilbur Gehres to be the owner of the stock of merchandise, the plaintiff in the attachment suit and defendant in the interplea duly excepted, and has perfected his appeal direct to this court on the ground that the constitutionality of the act of May 13, 1905, known as the ‘Bulk Sales Law’(Laws 1905, p. 284), is involved.

The statute the constitutionality of which is involved in this case is as follows:

‘Section 1.That a sale of any portion of a stock of merchandise, otherwise than in the ordinary course of trade or in the regular and usual prosecution of the seller's business or a sale of an entire stock of merchandise in gross, will be presumed to be fraudulent and void as against the creditors of the seller unless the seller and purchaser shall at least five days before the sale make a full and detailed inventory showing the quantity, and so far as possible, with the exercise of reasonable diligence, the cost price to the seller of each article to be included in the sale, and unless such purchaser shall at least five days before the sale, in good faith, make full and explicit inquiries of the seller as to the names and places of residences or places of business of each and all of the creditors of the seller and the amount owing each creditor and unless the purchaser shall at least five days before the sale, in good faith, notify or cause to be notified, personally or by registered mail, each of the seller's creditors of whom the purchaser has knowledge or can, with the exercise of reasonable diligence, acquire knowledge, of said proposed sale and of the said cost price of the merchandise to be sold and of the price proposed to be paid therefor by the purchaser.The seller shall at least five days before such sale fully and truthfully answer in writing each and all said inquiries.

‘Sec. 2.Except as especially provided in this act, nothing therein contained nor any act thereunder, shall change or affect the present rules of evidence or the present presumptions of law.’

The court below held the above statute unconstitutional, and refused to allow the appellant to prove that the sale in question had been made without complying with the provisions of said act.

The facts in this case are not in dispute.Della I. Morehead borrowed $500 from the First National Bank of Lincoln, Ill., with which she bought a small stock of groceries and engaged in the retail grocery business.She became indebted to Off & Co., of Peoria, for merchandise, to the amount of $288.81.Her business appears to have been unsuccessful.She sold her entire stock of goods to Wilbur Gehres.An invoice of the stock was taken, and it was found that the stock was worth, at cost prices, $296.Gehres paid her for the stock $260.A horse and delivery wagon valued at $100 were included in the sale, bringing the total sale price up to $360.Gehres paid for the property by a check.Appellee applied the whole amount of the check on her note of $500 to the bank.Appellee testifies that she found her business was unprofitable, and that she desired to apply the proceeds of the merchandise on her debts, as far as the same would go.Appellee had mortgaged her homestead for the $500 which she borrowed of the bank.

There is no contention that the sale of the stock of merchandise was fraudulent in fact.Appellant's sole contention is that the sale was made in violation of the bulk sales law, above set out, and for that reason it must be held fraudulent and void as to the creditors of appellee.

VICKERS, J.(after stating the facts as above).

The constitutionality of this statute is challenged on the ground that it is in conflict with sections 1and2 of the Bill of Rights.These sections are as follows:

‘Section 1.All men are by nature free and independent, and have certain inherent and inalienable rights-among these are life, liberty, and the pursuit of happiness.To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.

‘Sec. 2.No person shall be deprived of life, liberty or property, without due process of law.’

The statute in question singles out a particular class of persons, and imposes burdens upon them from which all other classes are exempt.The persons thus affected are deprived of both liberty and property, in that they are not permitted to contract in respect to a particular kind of property subject to the same laws that are applicable to all other classes of property.The privilege of contracting is both a liberty and a property right, and a law which deprives a man or a class of the right to acquire and enjoy property upon the same terms and in the same manner permitted to the community at large is in violation of the constitutional rights of the persons affected by such law.Cooley's Const. Lim. (1st Ed.) 393;Frorer v. People, 141 Ill. 171, 31 N. E. 395,16 L. R. A. 492.‘Due process of law’ is synonymous with ‘law of the land,’ and it means a general public law, binding upon all members of the community under all circumstances, and not partial or private laws...