Morris-Morton Drug Co. v. Glenwood Drug Co

• Decision Date: 12 February 1917
• Docket Number: 155
• Citation: 192 S.W. 224,127 Ark. 296
• Parties: MORRIS-MORTON DRUG CO. v. GLENWOOD DRUG CO
• Court: Arkansas Supreme Court

192 S.W. 224

127 Ark. 296

MORRIS-MORTON DRUG CO. v. GLENWOOD DRUG CO

No. 155

Supreme Court of Arkansas

February 12, 1917

Appeal from Pike Chancery Court, Jas. D. Shaver, Chancellor affirmed.

Decree affirmed.

McMillan & McMillan, for appellants.

1. Defendant was not liable for double costs, much less for plaintiff's claims. If the Bulk Sales Law was not complied with, plaintiff had a right to go against the stock of goods sold for the amount due them, and if suit was necessary for the purpose to sue appellant and judgment for costs in such a suit would be proper, but certainly it was not liable for the costs in the suit against West to prove their claims.

2. There is no proof that West owed five of the plaintiffs anything.

3. Plaintiffs are estopped by their conduct, silence and negligence in not collecting their claims out of West when they had the opportunity. 35 Ark. 365, 377; 99 Id 263; 2 Pom. Eq. Jur., §§ 802-4, p. 261-2; 96 W. S 720; 33 Ark. 468. The contract provided that West was to pay all claims and plaintiffs were duly notified to proceed against him. They waited too long, until West became insolvent and are estopped.

A. L Barber and S.W. Rogers, for appellees.

1. Defendant is liable for all costs. The claims were all reduced to judgment against West on the advice of appellant's attorney. 123 Ark. 285.

2. The Bulk Sales Law was violated and appellant is liable for all claims. 123 Ark. 285; Acts 1913, Act No. 88, § 3; 181 Mich. 225, 629; 148 N.W. 256, 356.

3. Plaintiffs are not estopped. Pomeroy Eq. Jur., p. 262, § 803. But defendant is.

4. Appellant did not comply with Act 88, Acts 1913, and is liable. 179 S.W. 257; 123 Ark. 285.

OPINION

MCCULLOCH, C. J.

Appellant purchased a stock of drugs, on January 30, 1914, from J. T. West, who was engaged in business at Glenwood, Arkansas, and appellees, who were creditors of West, sue to recover the amount of their respective claims, asserting liability under Act 88 of the General Assembly of 1913, known as the Bulk Sales Law. It is conceded that appellant failed to comply with the statute in question, in that it neglected to demand of the vendor a list of his creditors verified under oath, and the evidence adduced in the trial below establishes the respective claims of appellees. The principal contention on behalf of appellant against being held responsible for the debts of West is that each of the appellees was estopped by his conduct from asserting liability against appellant under the statute. It appears that West, immediately after the sale of the stock of goods to appellant, moved to Conway, Arkansas, and entered in the drug business at that place and was engaged in an apparently prosperous business for about a year. Soon after the sale of the stock of goods by West to appellant occurred, claims began to come in and appellant advised the creditors of the fact that West was in business at Conway and requested, or at least suggested, that the claims be sent to attorneys at Conway for collection from West. Appellant's attorney, with whom he advised, and who took charge of the matter, corresponded with the attorneys who now represent the appellees and who are practicing law at Conway, telling them that the claims against West would probably be sent to them and requesting them to proceed against West and endeavor to collect the claims by judgment and execution. The claims were in fact sent to those attorneys and the suits were instituted against West, but before anything was realized West...