Gallus v. Elmer

• Decision Date: 17 October 1906
• Citation: 78 N.E. 772,193 Mass. 106
• Parties: GALLUS v. ELMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 106

78 N.E. 772

GALLUS v. ELMER.

Supreme Judicial Court of Massachusetts, Hampden.

October 17, 1906

COUNSEL

Edwd. A. McClintock and John P. Kirby, for plaintiff.

Jas. H Loomis, for defendant.

OPINION

HAMMOND J.

St 1903, p. 276, c. 415, provides that 'the sale in bulk of any part of the whole of a stock of merchandise other wise than in the ordinary course of trade or in the regular and usual prosecution of the seller's business shall be fraudulent and void as against the creditors of the seller' unless certain things are done by the seller and purchaser, and the question is whether the transaction which took place between the plaintiff and Kopec on June 9, 1905 was within the statute. The requisites of the statute were not complied with by either the seller or the purchaser, and the transaction was clearly otherwise than in the ordinary course of the seller's business.

The plaintiff however stoutly insists that the transaction in substance was not a sale, but the discharge by way of accord and satisfaction of a pre-existing debt due to him from Kopec. There can be no doubt that there was a discharge of the pre- existing debt by way of accord and satisfaction; and if, after the transaction, the plaintiff had sued Kopec, the accord and satisfaction would have been a complete defense.

But the transaction had another phase so far at least as respected Kopec's other creditors. There was a change in the ownership of the property, which, if valid as against them freed from liability property which theretofore could have been attached by them; and thus their security was impaired. While it is true that in its strictest sense a sale is a transfer of personal property in consideration of money paid or to be paid, still in the interpretation of statutes it is often held to include barter and any transfer of personal property for a valuable consideration. 'In a general and popular sense, the sale of an article signifies the transfer of property from one person to another, for a consideration of value, without reference to the particular mode in which the consideration is paid.' Bigelow, C.J., in Howard v. Harris, 8 Allen, 297, 299. And accordingly it was held in that case that where the consideration for the transfer of the ownership of a horse consisted of intoxicating liquors which the buyer of the horse was not legally authorized to sell, the transaction was a sale within the meaning...