Independent Breweries. Co. v. Lawton

• Decision Date: 25 June 1918
• Docket Number: No. 2324.,2324.
• Citation: 200 Mo. App. 238,204 S.W. 730
• Parties: INDEPENDENT BREWERIES. CO. v. LAWTON et al.
• Court: Missouri Court of Appeals

204 S.W. 730

200 Mo. App. 238

INDEPENDENT BREWERIES. CO. v. LAWTON et al.

No. 2324.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by the Independent Breweries Company

against J. H. and M. J. Lawton, wherein P. W. Evans and G: L. McCullough interpleaded. From judgment for the interpleaders, plaintiff appeals. Affirmed.

Jno. T. Fitzsimmons, of St. Louis, and Mercer Arnold, of Joplin, for appellant. Hugh Dabbs and Walden & Andrews, all of Joplin, for respondents.

FARRINGTON, J.

The Lawtons (defendants), who conducted a billiard and pool hall business in Joplin, Mo., sold it to F. W. Evans and G. L. McCullough (interpleaders), the respondents herein. The plaintiff (appellant) was a creditor of the Lawtons, who were indebted to it at the time of the sale. There was no attempt by either defendant or the interpleaders to comply with the provisions of the Bulk Sales Law of Missouri enacted in 1913 (Sess. Laws 1913, p. 163.) Within 90 days after the sale the plaintiff brought this suit against the Lawtons for the debt, and sued out a writ of attachment which was levied on the billiard and pool tables and fixtures and equipment—that is, on the tables, cues, racks, balls, chairs, and usual equipment of a billiard hall, which levy included a small stock of cigars and the showcase in which the cigars were displayed. It was shown that the license to run the billiard hall and the license to sell the cigars were independent and separate. The court heard the evidence and found for the interpleaders, except as to the cigars and showcase. No complaint of this ruling as to the cigars and showcase is made by the respondents.

Counsel on both sides have commendably narrowed the question actually for decision by this court to the one proposition, to wit: Does the sale of a billiard and pool hall business, including the tables, cues, racks, balls, chairs, and usual equipment, fixtures, and paraphernalia going with a billiard and pool hall fall within the provisions of and become governed by the Bulk Sales Law, which requires, in order for certain sales of goods, wares, and merchandise in bulk to be valid, so far as creditors are concerned, that notice be given to creditors and other requirements met which are specified in the law.

The title of the act reads:

"An act to regulate the sale, trade or other disposition of the major part in value or the whole of a stock of merchandise, or merchandise, fixtures and equipment, or equipment pertaining to the vendor's business, otherwise than in the ordinary course of trade and the regular prosecution of the vendor's business. * * *"

Section 1 of the act reads, in part, as follows:

"The sale, trade or other disposition of the major part in value or the whole of a stock of merchandise, or merchandise, fixtures and equipment, or equipment pertaining to the vendor's business, otherwise than in the ordinary course of trade and in the regular prosecution of the vendor's business, whether in one or more parcels or to one or more persons, provided the transfer is all part, of substantially one transaction or proceeding or occurs substantially at one time, shall be fraudulent and void as against all creditors of the vendor, unless the vendee. * * * "

We hold that this law is applicable only to sales made by those carrying on a mercantile business, that is, merchants who buy goods, wares, and merchandise as a business for the purpose of reselling, and that the act is broad enough to cover the goods and all fixtures and equipment pertaining to the vendor's business which were incident to and used in connection with the sale of the goods. As we held in the case of Joplin Supply Co. v. Smith, 182 Mo. App. 212, 167 S. W. 649, the purpose of the Bulk Sales Law is to prevent a trader who is indebted from disposing of his merchandise and fixtures in a manner otherwise than in the regular course of business unless he complies with the requirements of the act. It is the sale or trade or disposition of the articles mentioned in the act otherwise than in the ordinary course of trade and in the regular prosecution of the vendor's business that is prohibited unless the requirements are met. The act does not cover, in terms or by implication, a sale or trade or disposition of a business that is not carried on for the purpose of selling or disposing of goods, wares, and merchandise.

The Bulk Sales Law of Missouri is similar to and intended to cover the same scope and purposes as the acts of other states relating to this subject, and while perhaps no two of the acts are drawn in exactly the same language and no two of them include all the same property, yet all are designed to regulate the sale of the merchandise of a merchant in bulk, and the act of Missouri has included in the regulation such property as the vendor or merchant or trader owns and uses in connection with and incident to the sale of his goods, wares, and merchandise. We cite the following cases as sustaining the construction we have placed on the act under consideration, and, as before stated, while it may be said that the acts under which these cases were...