Goodman v. Clarkson

• Decision Date: 28 February 1929
• Docket Number: 18934.
• Citation: 147 S.E. 183,39 Ga.App. 383
• Parties: GOODMAN v. CLARKSON.
• Court: Georgia Court of Appeals

147 S.E. 183

39 Ga.App. 383

GOODMAN v. CLARKSON.

No. 18934.

Court of Appeals of Georgia, Second Division

February 28, 1929

Syllabus by Editorial Staff.

Sale or transfer of stock of goods may amount to fraud, under Bulk Sales Act 1903 (Civ. Code 1910, §§ 3226-3229), although only part of stock be sold, where sale of stock is out of usual or ordinary course of business.

Where automobile dealer maintained principal office in city and branch office in another city, sale of entire stock of merchandise, consisting of secondhand automobiles, furniture and shop equipment constituted "sale out of ordinary course of business," and, where made without compliance with Bulk Sales Act 1903 (Civ. Code 1910, §§ 3226-3229), was fraudulent against existing creditors of seller.

Where seller of stock of merchandise in bulk, which is fraudulent under Bulk Sales Act 1903 (Civ. Code 1910, §§ 3226-3229) becomes bankrupt, trustee in bankruptcy can, under Bankruptcy Act, § 70e (11 USCA § 110(e), maintain suit against purchaser for benefit of creditors of seller existing at time of sale regardless whether sale could be attacked by existing creditors of seller in suit against purchaser to recover value of merchandise.

In suit by trustee in bankruptcy against purchaser of stock of merchandise to recover value of goods, on ground that sale was fraudulent under Bulk Sales Act 1903 (Civ. Code 1910, §§ 3226-3229), it is immaterial whether or not seller was corporation or partnership.

In suit by trustee in bankruptcy against purchaser of stock of merchandise to recover value of goods sold in violation of Bulk Sales Act 1903 (Civ. Code 1910, §§ 3226-3229), where suit is against defendant as individual doing business under particularly described company, it is immaterial whether or not company is corporation or partnership.

Error from Superior Court, Fulton County; E. E. Pomeroy, Judge.

Action by T. B. Clarkson against B. E. Goodman. Judgment for plaintiff, and defendant brings error. Affirmed.

Terrell & Terrell, of La Grange, and Hooper & Hooper, of Atlanta, for plaintiff in error.

Harry L. Greene and Noah J. Stone, both of Atlanta, for defendant in error.

Syllabus OPINION.

STEPHENS J.

1. A sale or transfer of a stock of goods, wares, or merchandise may amount to a fraud, under the Bulk Sales Act of 1903 (Civil Code of 1910, §§ 3226 -3229), although only a part of the stock be sold, where the sale of the stock is "out of the usual or ordinary course of the business or trade of the vendor." Civ. Code 1910, § 3229. Where a person is engaged in a business which consists in "selling Reo automobiles," and maintains his principal office and place of business in one city, and is engaged in a similar business in another city, in which he maintains a branch office and place of business, and at the latter place keeps a stock of goods, wares, and merchandise, consisting of secondhand automobiles, office furniture, fixtures automobile parts, and shop equipment, a sale by him of the entire stock of goods, wares, and merchandise kept at the branch place of business constitutes a sale "out of the...