Johnson v. Kelly

• Decision Date: 30 September 1915
• Citation: 32 N.D. 116,155 N.W. 683
• Parties: JOHNSON v. KELLY.
• Court: North Dakota Supreme Court

32 N.D. 116

155 N.W. 683

JOHNSON

v.KELLY.

Supreme Court of North Dakota.

September Term, 1915.

Syllabus by the Court.

Action in conversion against a sheriff for property sold on execution in a suit between third parties. The sheriff justifies under execution levy. Held, there was sufficient evidence to require the submission to the jury of the fact and character of plaintiff's alleged ownership.

The articles were utensils, fixtures, and equipment used in conducting a restaurant business. Held, it did not constitute any part of a stock of merchandise and fixtures within the meaning of chapter 247, Sess. Laws 1913 (sections 7224-7227, Comp. Laws 1913), commonly known as the Sales in Bulk Law.

The sales in bulk statutes apply only to stocks of merchandise and fixtures, or goods a part of a merchandise stock which are kept for sale as such.

The instructions were given under the theory that the Bulk Sales Law applied and could not have been other than misleading, confusing, and prejudicial. As it is impossible to determine whether the verdict was based upon the erroneous assumption that the Bulk Sales Law applied, or whether the sale was fictitious or fraudulent in fact, the verdict and judgment thereon must be set aside.

Appeal from Ward County Court.

Action by W. H. Johnson against E. D. Kelly. From judgment for defendant, plaintiff appeals. Reversed and remanded.E. R. Sinkler, of Minot, for appellant. W. H. Sibbald, of Minot, and Francis J. Murphy, of Bismarck, for respondent.

GOSS, J.

Suit for conversion against the defendant as sheriff, to recover the value of property sold on execution levy at the suit of a third party. The sheriff refused to deliver possession of said property to plaintiff upon his verified demand therefor. Defendant justifies under the levy. The jury, by general verdict, found for the defendant, and plaintiff appeals.

[1] The first question raised is whether there is sufficient conflict in the proof to warrant the submission to the jury of the question of the fact and character of his ownership. It is unnecessary to pass upon this further than to state, in view of a necessary retrial, that there is sufficient evidence in the record from which the jury might have found adversely to plaintiff upon these questions.

[2][3][4] Error is specified and assigned upon instructions. These were given upon the theory that the sale was one covered by the law governing sales in bulk of stocks of merchandise, as declared by chapter 247 of the Session Laws of 1913 (sections 7224-7227, Comp. Laws 1913), amending chapter 221 of S. L. 1907, substantially the Uniform Bulk Sales Law. See note to 2 L. R. A. (N. S.) 331, naming the states having substantially the same statutes on sales in bulk. This drastic measure is leveled only at sales, transfers, or assignments in bulk “of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller.” Section 7224, S. L. 1913. It destroys secret assignments, sales or transfers of stocks of merchandise or stocks of merchandise and fixtures in fraud of creditors. Everett v. Smith, 40 Wash. 566, 82 Pac. 905, 2 L. R. A. (N. S.) 331 and note, 111 Am. St. Rep. 979, 5 Ann. Cas. 798. It certainly does not apply to the furniture, fixtures, and utensils used in the operation of this restaurant business without proof that a merchandise business was conducted in connection with or incidental to said restaurant business. Washington has held the contrary under their law as to a sale of a restaurant stock in Plass v. Morgan, 36 Wash. 160, 78 Pac. 784, but practically recede from this holding in Albrecht v. Cudihee, 37 Wash. 206, 79 Pac. 628, and Everett v. Smith, 40 Wash. 566, 82 Pac. 905, 2 L. R. A. (N. S.) 331, 111 Am. St. Rep. 979, 5 Ann. Cas. 798. The decision in Plass v. Morgan is based upon the terms of their bulk sales statute voiding sales of “ any stock of goods, wares, and merchandise.” The word “any” was held to broaden the statute making it apply to “any stock,” which therefore covered restaurant stock, Our statute does not so read, but by its plain terms applies only to stocks of merchandise or goods...