Eklund v. Hopkins

• Decision Date: 13 December 1904
• Citation: 36 Wash. 179,78 P. 787
• Parties: EKLUND et al. v. HOPKINS et al.
• Court: Washington Supreme Court

78 P. 787

36 Wash. 179

EKLUND et al. v. HOPKINS et al.

Supreme Court of Washington

December 13, 1904

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by James Hopkins against Ernest Eklund, in which judgment was rendered for plaintiff, and execution was issued and levied on a stock of goods which was claimed by A. Eklund and another under Ballinger's Ann. Codes & St. § 6661. On a trial of the issue in the superior court on appeal from a justice of the peace, a verdict was directed against the claimants, after which a new trial was granted, and plaintiff and the constable who made the levy appeal. Reversed.

John A Pierce, for appellants.

Roche &amp Onstein, for respondents.

MOUNT, J.

In March, 1903, one Ernest Eklund was conducting a second hand store in Spokane. On the 26th day of March he sold his business and the whole of the goods, wares, and merchandise in stock to respondents, without attempting to comply with the act of 1901 relating to the sale and transfer of goods wares, and merchandise in bulk. At that time Ernest Eklund was indebted to appellant Hopkins for services as an attorney at law. After the sale Hopkins obtained a judgment against Ernest Eklund in the justice court. An execution was issued upon this judgment, and placed in the hands of appellant Saling, a constable, for service. Saling levied upon the stock of goods and merchandise. Thereupon respondents claimed the goods under the provisions of section 6661, 2 Ballinger's Ann. Codes & St. Thereafter a trial was had before a justice of the peace, who found against the claimants and in favor of the appellants. Subsequently the respondents appealed to the superior court of Spokane county where a trial of the same issues was had before the court and a jury. The superior court, after hearing the claimants' evidence, directed a verdict in favor of appellants on the ground that the sale of the goods by Ernest Eklund to respondents was void. Subsequently the superior court, upon motion of respondents, granted a new trial upon the ground that the appellant Hopkins was a general creditor of said Ernest Eklund, and not a creditor on account of goods, wares, and merchandise purchased by said Ernest Eklund, or on account of money borrowed to carry on the business of which said goods were a part. This appeal is prosecuted from the order granting a new trial.

The only real question presented is whether the act of 1901 (Laws 1901, p. 222, c. 109) relating to the purchase, sale, and transfer of stocks of goods, wares, and merchandise in bulk applies only to certain creditors, or applies to all the creditors of the vendor alike. Respondents argue, and the lower court held, that the act applies only to those creditors 'for or on account of goods, wares, or merchandise purchased upon credit, or on account of money borrowed to carry on the business.' Section 1 of this act provides: 'It shall be the duty of every person who shall * * * purchase any stock of goods, wares or merchandise in bulk * * * to demand of and receive from such vendor * * * a written statement, sworn to substantially as hereinafter provided, of the names and addresses of all the creditors of said vendor, to whom said vendor may be indebted, together with the amount of the indebtedness due * * * each of such creditors; and it shall be the duty of said vendor, or agent to furnish such statement, which shall be verified by an oath to the following effect: 'State...