Coon v. Doss

• Decision Date: 24 October 1935
• Docket Number: No. 23117.,23117.
• Citation: 198 N.E. 341,361 Ill. 515
• Parties: COON v. DOSS.
• Court: Illinois Supreme Court

361 Ill. 515

198 N.E. 341

COON

v.DOSS.

No. 23117.

Supreme Court of Illinois.

Oct. 24, 1935.

Action by Lawrence Coon against T. W. Doss. From a judgment of the Appellate Court affirming a judgment for the plaintiff, defendant appeals.

Affirmed.

Appeal from Appellate Court, Third District, on Appeal from Macon County Court; Harley C. Helm, Judge.

W. A. Doss, Carl I. Glasgow, and B. E. Morgan, all of Monticello, for appellant.

John R. Fitzgerald and Charles F. Evans, both of Decatur, for appellee.

WILSON, Justice.

On April 5, 1934, T. W. Doss obtained judgment by confession in the circuit court of Piatt county for $904.45, the balance remaining unpaid on a note executed by Taylor Coon, payable to the Croninger State Bank of Cisco and assigned by the bank to Doss. An execution was issued on the judgment, and on June 30, 1934, the sheriff of Macon county levied upon certain live stock and farm machinery in the control and possession of Lawrence Coon, son of Taylor Coon, as the latter's property. Eleven days later Lawrence Coon (hereinafter referred to as the claimant) instituted a trial of the right of property in the county court of Macon county. His claim was for the property levied upon under the execution in favor of T. W. Doss (hereinafter referred to as the defendant). A jury returned a verdict finding the issues for the claimant and judgment was rendered on the verdict. The defendant prosecuted an appeal to the Appellate Court for the Third District and that court affirmed the judgment. Upon the petition of the defendant the Appellate Court granted a certificate of importance and allowed a further appeal to this court.

The pertinent facts disclosed by the evidence are as follows: On August 9, 1927, Taylor Coon executed and delivered to the Croninger State Bank his unsecured note for $2,000 (the note involved in this litigation), due in six months, with interest at 7 per cent. Coon had been engaged in the business of farming on a rented farm of 320 acres in Macon county since 1895. On November 13, 1930, he executed a bill of sale to William L. Alexander, his landlord, for the major portion of the personal property owned and used by him on the farm, for the expressed consideration of $7,016. At that time Coon owed the bank $785 in principal on the note and interest on this amount from April 25, 1930. It is conceded that no attempt was made to comply with the provisions of the Bulk Sales Act. Afterwards, on the same day, Alexander leased his farm to the claimant for the period from March 1, 1931, to March 1, 1936, and sold and transferred the same personal property to him by a second bill of sale. The consideration stated in this bill of sale was also $7,016. The property included in the bills of sale remained in the possession and control of the claimant after November 13, 1930. More than three years later, namely, on March 3, 1934, the Croninger State Bank sold and assigned to the defendant all of its assets, including the note executed by Taylor Coon on August 9, 1927, and upon which $666.14 in principal, and interest thereon from April 15, 1931, was then due.

To obtain a reversal of the judgment, the defendant makes the contention that she was a creditor of Taylor Coon within the contemplation of the Bulk Sales Act and therefore entitled to treat the sale as a nullity and levy on the property in question as his property. The defendant was not a creditor of Taylor Coon on November 13, 1930, when he sold the personal property in controversy to Alexander and when the latter transferred it to the claimant. The evidence discloses that she did not become a creditor of Taylor Coon until March 3, 1934, when she purchased the note made by him to the Croninger State Bank in 1927. The question thus presented is whether the defendant, as the assignee of the bank, which was a creditor of Taylor Coon on November 13, 1930, can attack the sale of the property in controversy.

Section 1 of ‘An Act to regulate the sale or transfer of goods, wares, merchandise, and other chattels in bulk and to provide certain penalties in connection therewith,’ approved May 3, 1913, in force July 1, 1913, and at the time of the sale, in 1930 (Smith-Hurd Ann. St. c. 121 1/2, § 78; Cahill's Rev. St. 1929, p. 2300, c. 121a, par. 1), declares that a sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise and fixtures or other goods and chattels of the vendor's business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor's business, shall be fraudulent and void against his creditors, unless the vendee shall, at least five days before the consummation of such transaction, demand and receive from the vendor a written statement under oath of the vendor, containing a full and complete list of his creditors, their addresses, and the amounts owing to each, or, in the event that there are no creditors, a statementto this effect. The first section further provides that the vendee shall, at least five days before taking possession and at least five days before the payment of the purchase price, cause to be delivered to each creditor a written notice of the proposed purchase by him of the goods and chattels and of the price, terms, and conditions of such sale. Penalties for the violation of section 1 are prescribed by section 2 (Smith-Hurd Ann. St. c. 121 1/2, § 79). By the third section (Smith-Hurd Ann. St. c. 121 1/2, § 80) it is provided that vendors and vendees under the act shall include corporations, associations, copartnerships, and individuals who shall be party to any sale, transfer, or assignment of goods and chattels in bulk.

The defendant argues that assignees of persons who were creditors of a vendor at the time of a sale or transfer made in violation of section 1 of the Bulk Sales Act may avail themselves of its provisions. A primary purpose of statutory construction is to ascertain the intention of the Legislature. In determining this intent the courts always consider the language used, the evil to be remedied, and the object to be attained. People v. Continental Illinois Nat. Bank & Trust Co., 360 Ill. 454, 196 N. E. 515;People v. Hughes, 357 Ill. 524, 192 N. E. 551;People v. Giles, 268 Ill. 406, 109 N. E. 273;Warner v. King, 267 Ill. 82, 107 N. E. 837. The first Bulk Sales Act in Illinois was enacted by the General Assembly in 1905. Laws 1905, p. 284. That act was expressly limited in its application to sales of stocks of merchandise and was held unconstitutional. Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264,20 L. R. A. (N. S.) 167, 126 Am. St. Rep. 184,14 Ann. Cas. 434. In 1913 the present statute was passed. Laws 1913, p. 258. Its validity has been sustained. Johnson Co. v. Beloosky, 263 Ill. 363, 105...