Joplin Supply Company v. Smith

• Decision Date: 13 June 1914
• Citation: 167 S.W. 649,182 Mo.App. 212
• Parties: JOPLIN SUPPLY COMPANY, Appellant, v. C. C. SMITH, Defendant; E. B. NOLAND, Interpleader, Respondent
• Court: Missouri Court of Appeals

167 S.W. 649

182 Mo.App. 212

JOPLIN SUPPLY COMPANY, Appellant, v. C. C. SMITH, Defendant;

E. B. NOLAND, Interpleader, Respondent

Court of Appeals of Missouri, Springfield

June 13, 1914

Appeal from Jasper Circuit Court. Division No. Two.--Hon. David E Blair, Judge.

REVERSED.

Judgment reversed.

George V. Farris and H. W. Currey for appellant.

(1) The creditors referred to in section 1, Laws 1913, page 163 commonly called "Bulk Sales Law," include all creditors of the vendor and is not limited in its scope to the creditors who have sold and delivered merchandise to the debtor. People's Savings Bank v. Van Allsburg (Mich.), 131 N.W. 101; Shirt & Collar Co. v Windham, 131 N.W. 102. (2) Provisos appended to legislative enactments are not intended to impair or destroy the main purposes or to enlarge the meaning or effect of the statute to which they are added, but on the contrary to exclude from the operation thereof, something which might otherwise come within its scope. State v. Tel. Co., 116 N.W. 835; In Re Matthews, 109 F. 603; Futch v. Adams, 36 So. 575; Towson v. Denson, 74 Ark. 302; Brown v. Patterson, 224 Mo. 639; State ex rel. v. Brown, 57 N.W. 659; Baggaley v. Pittsburg & Lake Superior Iron Co., 90 F. 636. (3) The proviso is generally used in a statute to qualify, limit or restrain the operation of general terms contained in a previous part of the section or Act, and not to introduce a distinct and independent proposition. Allen's Lessee v. Parish, 3 Ohio 187; In re Hoss Estate, 109 P. 1071; State v. Robinson, 121 P. 848. (4) Where a new remedy is given by a statute and there are no enactive words or other provisions making it exclusive it will be deemed to be accumulative only and not to take away prior remedies. State v. Edwards, 162 Mo. 660; Walsh v. Plumbers' Assn., 97 Mo.App. 280; Clark v. Lancy, 59 N.E. 1034.

W. R. Shuck for respondent.

It is not the purpose of a mere proviso to add to the body of the substantive law, nor to take anything therefrom. Its purpose is to restrict, limit, or explain the general terms of the Act of which it forms a part. Brown v. Patterson, 24 Mo. 639.

FARRINGTON, J. Robertson, P. J., concurs. Sturgis, J., concurs in a separate opinion.

OPINION

FARRINGTON, J.--

This case was tried in the circuit court of Jasper county on the following agreed statement of facts:

"C. C. Smith and wife were merchants operating a store at Purcell, Mo. That said company became indebted to plaintiff in the sum of forty dollars for merchandise sold to the company. That on the 12th day of July, 1913, C. C. Smith and wife sold to interpleader their stock of goods, said sale being in bulk, for the sum of $ 502. That Smith and wife executed and delivered to interpleader a bill of sale, acknowledged, with affidavit attached, setting out the fact that said goods were free and clear of all encumbrances. That interpleader took possession of said stock of merchandise under the bill of sale and held same for a period of about eight days. Plaintiff company on the day of July, 1913, sued out in justice court a writ of attachment against C. C. Smith and wife and delivered same to the constable of Joplin township. That the constable notified interpleader of said writ, and that on the same day same was issued, demanded the debt, that at the time of said demand, interpleader tendered or made an offer to plaintiff company to turn over to plaintiff company any and all goods in said stock of merchandise that could be identified as having been sold to said C. C. Smith and wife by plaintiff company, and kept said offer and tender standing during the progress of this litigation as far as reached now. That after said tender was made, plaintiff company, through the constable of Joplin township, made no further attempt to make any levy under the writ of attachment for more than ten days when under the direction of plaintiff company, the constable served said writ of attachment as against said Smith and wife, on a certain amount of merchandise, in the building controlled by interpleader, none of which was identified or claimed to have been sold or furnished by plaintiff company except some small articles of small value, hence this suit.

"Upon a trial before A. M. Baird, justice of the peace, the justice rendered his decision for the interpleader.

"That it is agreed that at the time of the sale, made from Smith and wife, to interpleader, that Smith and wife failed to send out any notice to any creditors of the anticipated sale, and interpleader admits that his title to said property or merchandise is based solely on the bill of sale, the possession of said merchandise, the fact of said sale being in good faith so far as interpleader is concerned. That it is admitted that interpleader paid said Smith and wife in full for all the goods sold.

"It is agreed that at the time of the sale by Smith and wife to Noland, interpleader, that Smith and wife were indebted to plaintiff in the sum of forty dollars for goods, wares and merchandise, sold and delivered to Smith and wife and which amount is still due and unpaid.

"It is further agreed that Noland, interpleader, did not demand a written statement from Smith and wife seven days before he made the purchase of a list of creditors of Smith and wife, but relied solely on his bill of sale, above mentioned."

Judgment was rendered for the interpleader and the plaintiff appealed.

The decision of the question involved requires a construction of the act generally known as the bulk sales law which was enacted by the General Assembly in 1913 (Laws 1913, pp. 163, 164, 165).

Approaching the question it will be well to bear in mind that the bulk sales law is intended to prevent a trader who is indebted from disposing of his merchandise and fixtures in a manner other than the regular course of trade which would enable him to place his property beyond the reach of his creditors. Such law is a wholesome enactment, and imposes no hardship on honest traders who desire to apply their property to the payment of their just debts.

Section 1 of the act declares that certain sales, trades, and dispositions of merchandise, etc., shall be fraudulent and void as against the creditors of the vendor unless certain steps are taken by the vendor and vendee as are set forth in said section.

Section 2 of the act is as follows: "Any vendee who shall conform to the provisions of this act shall not be held in any way accountable to any creditors of the vendor, or to the vendee, for any of the merchandise, or merchandise, fixtures and equipment, or equipment that have come into the possession of said vendee by virtue of such sale, trade, or other disposition, but any vendee who shall fraudulently fail or refuse to comply with the provisions of this act, shall upon application of any of the creditors of the vendor become a receiver and be held accountable to such creditors for all the merchandise, or merchandise, fixtures, and equipment or equipment that have come into his possession by virtue of said sale, trade or other disposition thereof: Provided, however, that nothing in this act shall be so construed as to give any creditor, manufacturer, wholesale merchant or jobber any right to, or lien on any merchandise or article in any stock of goods, except the goods sold and delivered by such creditor, manufacturer, wholesale merchant or jobber."

It is necessary to a determination of this case to refer to section 2294, subdivision 7, giving as ground for attachment a fraudulent conveyance, and to section 2344, Revised Statutes 1909, which is as follows: "Any attaching creditor may maintain an action for the purpose of setting aside any fraudulent conveyance, assignment, charge, lien or encumbrance of or upon any property attached in any action instituted by him; and where several attachments in favor of different plaintiffs are levied on the same property, all or any number of such plaintiffs may join in the same action for that purpose."

The difficulty arises over the construction to be placed upon the proviso of section 2 of the Act of 1913. It is perfectly apparent that were the proviso not contained in the law, the statement of facts revealing such a sale as is declared fraudulent and void in section 1 of the Act of 1913, a creditor would be given the remedy of attaching the stock of goods under section 2294, Revised Statutes 1909, and commencing a suit under section 2344, Revised Statutes 1909, to set aside such fraudulent conveyance.

Respondent, the vendee, contends that he has complied with section 1 of the Act of 1913 by requiring in the bill of sale the provision that the goods were free and clear of encumbrance. This, however, falls far short of the necessary list of creditors as is contemplated by section 1 of the act. This provision in the bill of sale by no means informs the vendee that the vendor has no creditors. It was held in the case of Interstate Shirt & Collar Co. v. Windham (Mich.), 131 N.W. 102, under a similar bulk sales law, that a statement, sworn to, that "the stock was entirely free from debt" was not a sufficient compliance with the act.

The concrete question to be determined in this case is, Does the proviso in section 2 of the Act of 1913 limit the remedy of attachment to only such merchandise or articles in stock as were sold by the creditor to the vendor? In other words, Can a creditor who has not sold some of the identical goods or fixtures contained in the stock, when transferred in bulk, maintain an attachment against the vendor and levy on the stock under section 2294, Revised Statutes 1909?

Section 2 of the Act of 1913 creates a new remedy in favor of the creditor, providing that the vendee of a stock of goods where the requirements of the...