Elliott Grocer Co. v. Field's Pure Food Mkt., Inc.

• Decision Date: 05 October 1938
• Docket Number: No. 40.,40.
• Citation: 286 Mich. 112,281 N.W. 557
• Parties: ELLIOTT GROCER CO. v. FIELD'S PURE FOOD MARKET, Inc. (FIELD, Garnishee).
• Court: Michigan Supreme Court

286 Mich. 112

281 N.W. 557

ELLIOTT GROCER CO.

v.FIELD'S PURE FOOD MARKET, Inc. (FIELD, Garnishee).

No. 40.

Supreme Court of Michigan.

Oct. 5, 1938.

Action by the Elliott Grocer Company against Field's Pure Food Market, Inc., as principal defendant, and Marshall W. Field, as garnishee defendant. From an adverse judgment, the garnishee appeals.

Affirmed.

Appeal from Circuit Court, Eaton County; Russell R. McPeek, judge.

Argued before the Entire Bench.

Rosslyn L. Sowers, of Charlotte, for appellant.

Gregg, Thompson & Glassen, of Lansing, for appellee.

NORTH, Justice.

The plaintiff recovered a judgment against the principal defendant in the amount of $665.04, and now proceeds against the garnishee defendant Field for satisfaction of that judgment. Marshall W. Field, president and principal stockholder of the Field's Pure Food Market, a Michigan corporation, purchased from that corporation certain of its fixtures, paying therefore $1,250. The bill of sale is dated April 15, 1933, and on that date the corporation ceased doing business. At the time of the sale no notice was given to creditors of the corporation, and for that reason plaintiff, one of the creditors, contends that the case comes within the bulk sales law. 2 Comp.Laws 1929, §§ 9545-9547 (Stat.Ann. §§ 19,361-19.363). Sec. 9545 in part provides:

‘The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferor or assignor, shall be void as against the creditors of the seller, transferor, assignor * * *.’ unless certain steps provided in the statute are taken by the seller and purchaser.

Appellant contends that since there was only a transfer of certain fixtures without any transfer of merchandise, the act is not applicable. With this we do not agree. Instead the instant case is controlled by Michigan Packing Co. v. Messaris, 257 Mich. 422, 241 N.W. 236. While that case arose under the bulk mortgage statute (2 Comp.Laws 1929, § 9548 et seq., Stat.Ann. § 19.371), it will be noted that the pertinent portion of that statute is practically identical with the language we are now considering from § 9545, 2 Comp.Laws 1929. Although the Michigan Packing Co. Case was decided subsequent to the amendment (Act No. 198, Pub.Acts 1931), the transaction there involved arose prior to the amendment; and we held a mortgage which covered restaurant fixtures only was invalid as against a creditor because the statutory notice was not given. While the precise question now presented was not specifically urged in the Michigan Packing Co. Case, still it is clear that we there considered a mortgage of fixtures only as one coming within the statutory provision.

We are mindful it is pointed out in appellant's brief that § 9548, 2 Comp.Laws 1929 (bulk mortgage act), formerly read, ‘Every mortgage * * * of the whole or any part of a stock of merchandise or merchandise and fixtures * * *,’ but by Act No. 198, Pub.Acts 1931, this portion of the section was changed to read, ‘Every mortgage * * * of the whole or any part of a stock of merchandise or fixtures or merchandise and fixtures * * *;’ and from this appellant reasons that prior to the amendment the act was not applicable to a mortgage of fixtures only. As noted above, our decision in the Michigan, Packing Co. Case is not in accord with this contention. Further, we think the 1931 amendment of the bulk mortgage act above noted was one which merely clarified the meaning of the statute and the intent of the legislature,...