Cooney, Eckstein & Co. v. Sweat

• Decision Date: 20 November 1909
• Citation: 66 S.E. 257,133 Ga. 511
• Parties: COONEY, ECKSTEIN & CO. v. SWEAT et al.
• Court: Georgia Supreme Court

66 S.E. 257

133 Ga. 511

COONEY, ECKSTEIN & CO. v. SWEAT et al.

Supreme Court of Georgia

November 20, 1909

Syllabus by the Court.

The act approved August 17, 1903 (Acts 1903, p. 92), regulating the sale of "goods, wares, and merchandise" in bulk has no application to a sale of substantially all the lumber manufactured by one who operates a sawmill at which trees are manufactured into lumber.

An oral motion, in the nature of a general demurrer, may be made at any time before verdict.

Error from Superior Court, Wayne County; T. A. Parker, Judge.

Action by Cooney, Eckstein & Co., against F. B. Sweat and others. Judgment for defendants, and plaintiff brings error. Affirmed.

R. D Meader, for plaintiff in error.

Francis H. Harris, for defendants in error.

EVANS P.J.

Cooney Eckstein & Co., sued out an attachment in the superior court of Wayne county against Sweat, alleging that he was indebted to them in the sum of $219.17 for money advanced; that for some time prior thereto he was the lessee of a sawmill, at which trees were manufactured into lumber and sold to various purchasers; and that a few days prior to filing the suit he had sold to the Waynesville Trading Company substantially all the lumber he had on hand, consisting of the following items "36 pieces of yellow pine lumber, 8x16, 25 feet long; 750 pieces of yellow pine lumber, 2x5, 9 feet long, and 7,000 to 8,000 feet of yellow pine lumber, same being 5x8 car sills, making about 80 pieces, same being at said Waynesville, and at said sawmill, or on cars loaded there for shipment." It was further alleged that the notice referred to in the act of 1903 (Laws Ga. 1903, p. 92) had not been given. The attachment was issued, and the lumber levied upon. The Waynesville Trading Company filed a claim thereto, and to the declaration in attachment Sweat filed certain special demurrers, and also a plea. Subsequently the judge of the superior court dismissed the attachment, on the ground that the act of 1903 does not apply to a transaction of the kind set forth in the petition. The correctness of this judgment is the sole question presented by the writ of error.

1. The act of 1903 is applicable to a sale of "any stock of goods, wares and merchandise in bulk." The object of the Legislature in passing the statute was the protection of persons who had been extending credit to merchants on the faith of apparent prosperity, indicated by a stock of goods wares, and merchandise, which would not be sold in bulk to one person, but which would be sold out gradually, and replenished from time to time. When merchants sell their entire stock of goods to one person, without notice of any kind to their creditors, a fraud is frequently perpetrated upon the creditors; and it was the intention of the Legislature to afford a remedy to the victim of these fraudulent sales. The act is in derogation of the common law, and of a person's right to alienate his property without restriction, and is therefore to be strictly construed. Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 62 S.E. 82; Sampson v. Brandon Grocery Co., 127 Ga. 454, 56 S.E. 488; Carstarphen Warehouse Co. v. Fried, 124 Ga. 544, 52 S.E. 598. In the construction of statutes of this kind, it is always well to consider the evil intended to be reached. That evil, says Vann, J., in his dissenting opinion, in the case of Wright v. Hart, 182 N.Y. 330, 75 N.E. 404, 2 L.R.A. (N. S.) 338, "is the tendency and practice of merchants who are heavily in debt to make secret sales of their merchandise in bulk for the purpose of defrauding creditors. Common observation shows that, when a dealer has reached a point in his business career where he cannot go on, owing to the...