Johnston Bros. Co. v. Washburn

• Decision Date: 30 June 1917
• Docket Number: 6 Div. 4
• Citation: 16 Ala.App. 311,77 So. 461
• Parties: JOHNSTON BROS. CO. et al. v. WASHBURN.
• Court: Alabama Court of Appeals

77 So. 461

16 Ala.App. 311

JOHNSTON BROS. CO. et al. v. WASHBURN.

6 Div. 4

Court of Appeals of Alabama

June 30, 1917

Rehearing Denied Nov. 13, 1917

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by S.P. Washburn against Johnston Bros. Co. and others, for conversion. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Certiorari denied 77 So. 1002.

The facts sufficiently appear. The following is charge 4 refused to appellant:

I charge you that the act approved March 9, 1911, to regulate the sale of stock and merchandise in bulk, was made for the protection of all creditors of the seller, and a creditor of such seller who had not sold any of the goods embraced in the sale of the stock in bulk has the same right to invoke the benefit of that act as a creditor who had sold the goods covered by the stock sold in bulk.

London Yancey & Brower and W. M. Spencer, Jr., all of Birmingham for appellants.

George E. Bush, of Birmingham, for appellee.

BRICKEN J.

In February, 1914, D.B. Tidwell was engaged in the mercantile business in the city of Birmingham, and shortly previous to the 27th day of that month sold and delivered his stock of merchandise to S.P. Washburn, who paid $1,100 for the stock of goods and some other property. It is claimed that the stock of merchandise was reasonably worth $600. Johnston Bros. Company, a corporation (appellant), was a creditor of Tidwell's at the time he sold out to Washburn, and on the 26th day of February, 1914, said corporation, acting through its president, George Johnston, sued out an attachment against Tidwell. It appears that after the writ of attachment was sued out, but before the levy was made, Mr. Johnston was informed by his attorney that parties other than Tidwell were claiming the stock of goods, but, notwithstanding this information, he insisted on the levy being made, which was done after the plaintiff in that case had given an indemnifying bond. Later the goods were removed by the sheriff, sold by him, and purchased at the sheriff's sale by the appellant corporation. It appears that Tidwell also had other creditors at the time he sold out to Washburn. It was plaintiff's contention and the evidence tended to show that the debt due Johnston Bros. Company by Tidwell was for goods originally sold to a man named Cole, and that Cole sold out to the firm of Hildebrand and Tidwell, at Caldwell Ala., and that they assumed the payment of Cole's indebtedness to Johnston Bros. Company, and that later Tidwell gave his promissory note, containing a waiver of exemptions, evidencing that transaction, to Johnston Bros. It further appears that none of the goods involved in the transaction between Johnston Bros. Company and Cole, at Caldwell, were ever brought to Birmingham, but that all of the goods involved in that transaction either remained at Caldwell, or were disposed of there. There was evidence tending to show that Tidwell represented to Washburn, about the time they entered upon negotiations looking to a sale of the business, that he (Tidwell) had settled with all of his creditors. Washburn denies that he ever knew Tidwell was indebted to the appellant corporation until the goods were levied on under the attachment above referred to. The plaintiff in the court below admitted that the parties Washburn and Tidwell, did not comply with the Bulk Sales Law. The plaintiff's complaint contains two counts, one of which claimed damages of the defendants, "for wrongfully taking and carrying away" certain goods and chattels, the property of the plaintiff, and the other claims damages for "wrongfully causing and procuring Walter K. McAdory, sheriff of Jefferson county, Ala., to levy an attachment on" the same goods. Each of the defendants pleaded not guilty. There was a verdict in favor of the plaintiff for $1,000 and the defendants appeal.

The cause is submitted upon a motion to strike the bill of exceptions, and on the merits. The motion to strike the bill of exceptions is based upon alleged omissions in the bill. For instance, it appears in the record that "plaintiff offered in evidence the affidavit and bond and writ of attachment, which are in words and figures as follows: (Clerk will here set out affidavit, bond, and writ of attachment.)" But the affidavit, bond, and writ are not set out. The same is true with reference to a bill of sale and deed. The bill of exceptions contains this recital: "This was substantially all of the evidence."

While the bill of exceptions may be incomplete by reason of the omissions, this furnishes no ground for striking the incomplete bill, and the motion will therefore be overruled, and the case considered on its merits. Elliott v. Round Mountain Co., 108 Ala. 640, 18 So. 689; Anniston Mfg. Co. v. Southern Ry., 145 Ala. 351, 40 So. 965. The bill of exceptions shows on its face that it does not contain all of the evidence, nor the entire charge of the court ex mero motu. For that reason, we must presume that the parts of the court's oral charge excepted to were correct statements of the law as applied to the evidence before it. Southern Suspender Co. v. Van Borries, 91 Ala. 507, 8 So. 367; Wadsworth v. Williams, 101 Ala. 264, 13 So. 755.

The fact that one purchases a stock of merchandise and fails to comply with the provisions of the Bulk Sales Law is only presumptive evidence that as to creditors of the vendor the sale is fraudulent and void. Acts 1911, p. 94. This presumption is not conclusive, but may be rebutted by any competent evidence of sufficient weight to reasonably satisfy the jury that the transaction was not fraudulent. Hart v. Roney, 93 Md. 432, 49 A. 661; Williams v. Banks, 15 Okl. 477, 82 P. 496, 2 L.R.A. (N.S.) 334, 6 Ann.Cas. 970; Gilbert v. Gonyea, 103 Minn. 459, 115 N.W. 640; Fisher v. Herrmann, 118 Wis. 428, 95 N.W. 392; Baumeister v. Fink, 141 Ill.App. 372; Sprintz v. Saxon, 126 A.D. 421, 110 N.Y.Supp. 585.

Appellee contends that the presumption of fraud arising in a transaction of this kind from a nonobservance of the provisions of the Bulk Sales Law can only be overcome by evidence tending to show compliance with the law. Some courts...