Goodman v. Clarkson, (No. 18934.)

• Decision Date: 28 February 1929
• Docket Number: (No. 18934.)
• Citation: 39 Ga.App. 383,147 S.E. 183
• Parties: GOODMAN v. CLARKSON.
• Court: Georgia Court of Appeals

39 Ga.App. 383

147 S.E. 183

GOODMAN

v.CLARKSON.

(No. 18934.)

Court of Appeals of Georgia, Division No. 2.

Feb. 28, 1929.

(Syllabus by Editorial Staff.)

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 by the Court.

STEPHENS, J. [1, 2] 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 usual or ordinary course of the business or trade of the vendor, " and where made without a compliance with the provision of the Bulk Sales Act as respects notice to creditors, etc., is, by virtue of the provisions of the act, a fraud against the existing creditors of the vendor. Keller v. Fowler, 148 Tenn. 571 (4) 256 S. W. 879.

2. Whether or not the sale of a stock of goods, wares, and merchandise in bulk, which is fraudulent under the Bulk Sales Act, could be attacked by the then existing creditors of the vendor in a suit against the purchaser torecover the value of the goods (Jaques & Tinsley Co. v. Carstarphen, 131 Ga. 1, 62 S. E. 82), yet, where the vendor has afterwards become a bankrupt, the trustee in bankruptcy can, under the authority of section 70e of the Bankruptcy Act (11 USCA § 110 (e), maintain a suit against the purchaser for the benefit of the creditors of the vendor, existing at the time of the sale. Dodd v. Raines (D. C.) 1 F.(2d) 658; Gross v. Grossman (C. C. A.) 2 F.(2d) 458.

3. In a suit by the trustee in...