Coach v. Gage

• Decision Date: 17 February 1914
• Citation: 70 Or. 182,138 P. 847
• Parties: COACH v. GAGE, SHERIFF.
• Court: Oregon Supreme Court

138 P. 847

70 Or. 182

COACH v. GAGE, SHERIFF.

Supreme Court of Oregon

February 17, 1914

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by J. W. Coach against W. W. Gage, as Sheriff of Coos County. From a judgment for defendant, plaintiff appeals. Affirmed.

This was an action of replevin to recover possession of a stock of goods seized by defendant, as sheriff, upon an execution against Tawse & Button, who had sold them in bulk to Tawse &amp Baxter, who in turn sold them in bulk to plaintiff. The defense interposed is substantially that Tawse & Baxter did not comply with sections 6069, 6070, 6071, L. O. L., commonly known as the bulk sales law, in that they failed to demand and receive of their vendor the verified list of the creditors of Tawse & Button and failed to give notice to such creditors, as required by sections 6070, 6071, L. O. L. The answer alleges a like failure on the part of plaintiff, and it is claimed that the sale is void as to Wolf & Co., the attachment creditors of Tawse & Button, under which attachment the sheriff justifies in this action. The evidence for plaintiff having been submitted the court below directed a verdict for defendant, and plaintiff appeals.

F. J Feeney, of Bandon, and A. S. Hammond, of North Bend, for appellant. John D. Goss, of Marshfield, for respondent.

McBRIDE C.J. (after stating the facts as above.)

There is no bill of exceptions in this case, and, in view of the condition of the record, it will be necessary to state what matters are before the court on this appeal. There is only one method by which evidence can be brought to this court and that is by a bill of exceptions properly certified as such. As we said in Abercrombie v. Heckard, 136 P 876, and now repeat: "There is only one way to bring before this court any evidence offered and rejected in the court below, and that is by incorporating it in a bill of exceptions, either by a copy included therein or by making it an exhibit thereto." In the case at bar the oral testimony offered is certified by the judge to be such; but the rulings of the court thereon are not so certified, and the alleged verified list of creditors is not in the record, so that we cannot by an inspection of it determine whether or not it complied substantially with the statutory requirements. See, also, Nosler v. Coos Bay Nav. Co., 40 Or. 305, 63 P. 1050, 64 P. 855; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 46 P. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818; Farrell v. Oregon Gold Co., 31 Or. 463, 49 P. 876; Miles v. Swanson, 47 Or. 213, 82 P. 954; Multnomah Lumber Co. v. Weston Basket Co., 54 Or. 22, 99 P. 1046, 102 P. 1; Sit You Gune v. Hurd, 61 Or. 182, 120 P. 737, 1135; National Council, etc., v. McGinn, 138 P. 493, decided by this court February 3, 1914.

This leaves for the consideration of this court only one question, namely, the unconstitutionality of the bulk sales law. The sections of the statute material to the consideration of this cause are as follows:

"Sec. 6069. It shall be the duty of every person who shall bargain for or purchase any stock of goods, wares, or merchandise in bulk, for cash or on credit, to demand and receive from the vendor thereof, and if the vendor be a corporation then from a managing officer or agent thereof, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness therefor, a written statement under oath containing the names and addresses of all of the creditors of said vendor, together with the amount of indebtedness due or owing, or to become due or owing, by said vendor to each of such creditors, and if there be no such creditors, a written statement under oath to that effect; and it shall be the duty of such vendor to furnish such statement at least five days before any sale or transfer by him of any stock of goods, wares, or merchandise in bulk.

"Sec. 6070. After having received from the vendor the written statement under oath mentioned in section 6069 the vendee shall, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness for the same, in good faith notify or cause to be notified, personally or by wire or by registered letter, each of the creditors of the vendor named in said statement, of the proposed purchase by him of such stock of goods, wares, or merchandise; and whenever any person shall purchase any stock of goods, wares, or merchandise in bulk, or shall pay the purchase price or any part thereof, or execute or deliver to the vendor thereof or to his order, or to any person for his use, any promissory note or other evidence of indebtedness for said stock, or any part thereof, without having first demanded and received from his vendor the statement under oath as provided in section 6069, and without having also notified or caused to be notified all of the creditors of the vendor named in such statement, as in this section prescribed, such purchase, sale, or transfer shall, as to any and all creditors of the vendor, be conclusively presumed fraudulent and void.

"Sec. 6071. Any vendor of a stock of goods, wares, or merchandise in bulk, who shall knowingly or willfully make or deliver, or cause to be made or delivered, any false statement, or any statement of which any material portion is false, or shall fail to include the names of all of his creditors in any such statement as is required in section 6069, shall be deemed guilty of perjury, and upon conviction thereof shall be punished accordingly."

Much difference of opinion formerly existed in different jurisdictions as to the constitutionality of statutes of this character. In some jurisdictions it has been held that similar statutes are such an unreasonable exercise of the police power that they are obnoxious to the provisions of our federal and state Constitutions, which provide that no citizen or class of citizens shall be deprived of property "without due process of law," or be "denied the equal protection of the laws." Perhaps the opinion most ably stating this view is Wright v. Hart, 182 N.Y. 330, 75 N.E. 404, 2 L. R. A. (N. S.) 338, 3 Ann. Cas 263, wherein all the arguments that can be advanced against the constitutionality of such statutes are set forth with great ability and force; but in our view the dissenting opinions of Justice Vann and Chief Justice Cullen are more fully in accord with sound principles of constitutional construction, as well as...