Empire Radio Co., Inc. v. Bates, 7522.

• Decision Date: 03 April 1936
• Docket Number: No. 7522.,7522.
• Citation: 183 A. 882
• Parties: EMPIRE RADIO CO., Inc., v. BATES, Deputy Sheriff.
• Court: Rhode Island Supreme Court

183 A. 882

EMPIRE RADIO CO., Inc.,

v. BATES, Deputy Sheriff.

No. 7522.

Supreme Court of Rhode Island.

April 3, 1936.

Exceptions from Superior Court, Providence and Bristol Counties; G. Frederick Frost, Judge.

Action of replevin by the Empire Radio Company, Incorporated, against George H. Bates, deputy sheriff. From a decision for the defendant, the plaintiff brings exceptions.

Exceptions overruled.

Waldman & Waldman, of Providence, for plaintiff.

Greenough, Lyman & Cross and Owen P. Reid, all of Providence, for defendant.

CAPOTOSTO, Justice.

This case is before us on plaintiff's exception to a decision for the defendant by a justice of the superior court sitting without a jury.

In an action of replevin, the defendant pleaded that he, as deputy sheriff, attached the merchandise and fixtures in question, as the property of the Empire Radio Company, in an action in assumpsit brought against it by one Forrest W. Taylor.

Philip Korb was president of the Empire Radio Company, a corporation, and heavily interested in the Radio Finance Corporation. The Empire Radio Company operated two stores, one in Providence and the other in Pawtucket. The Pawtucket store was occupied under a written lease from Forrest W. Taylor, dated August 9, 1929, for the term of five years with monthly rental for the first 2 1/2 years at the rate of $300 a month, payable on the first day of the month in advance.

In January, 1932, the Empire Radio Company was in serious financial difficulties. At that time, the Radio Finance Corporation, of which one Albert Cohen was secretary, held by way of assignment installment leases covering merchandise sold by the Empire Radio Company in the sum of $35,000. On January 26, 1932, Korb and Cohen formed a new corporation under the name of the Empire Radio Co., Inc. Cohen became the president and Korb the secretary and treasurer of this new corporation. The same day the Empire Radio Company paid the rent which had been due since the first of January, and on Saturday, January 30, it moved everything from Pawtucket to its store in Providence. The following day it mailed the keys of the Pawtucket store to Taylor, the lessor.

On February 1, 1932, the Empire Radio Company executed a bill of sale transferring its stock, fixtures, and two automobiles to the Empire Radio Co., Inc. No mention was made of the lease and no liabilities were assumed, in the bill of sale, by the new corporation. Attached to the bill of sale was an affidavit of the treasurer of the Empire Radio Company, dated January 26, 1932, setting forth that the Empire Radio Co., Inc., as transferee, had demanded a written list of the names and addresses of all the creditors of the Empire Radio Company, as required by the provisions of chapter 311, General Laws 1923, known as the Sales in Bulk Act, and that the list therein given was a full, accurate, and complete list of such creditors. The name of the lessor, Forrest W. Taylor, was not included in this list.

By writ dated February 2, 1932, Taylor brought suit for the February rent for the Pawtucket store and attached, as the property of the Empire Radio Company, certain stock and fixtures then in the possession of the Empire Radio Co., Inc., at the Providence store and being a part of the articles covered by the bill of sale. The plaintiff, thereupon, brought this action in replevin.

The sole question for decision by the superior...