Neas v. Borches

• Decision Date: 25 October 1902
• Citation: 71 S.W. 50
• Parties: NEAS v. BORCHES et al.
• Court: Tennessee Supreme Court

Page 50

71 S.W. 50

NEAS v. BORCHES et al.

Supreme Court of Tennessee.

October 25, 1902.

Appeal from circuit court, Cocke county; W. R. Hicks, Judge.

Replevin by Borches & Co. against John F. Neas. From a judgment for plaintiffs, defendant appeals. Reversed.

B. W. Hooper and H. N. Cate, for appellant. W. J. & W. D. McSween, for respondents.

WILKES, J.

This is an action of replevin, brought before a justice of the peace, for 67 pair of shoes, valued at $67, levied upon by attachment in the hands of Neas, sheriff, in favor of Donaldson Bros. On appeal to the circuit court the cause was heard by the judge without a jury, and there was judgment for the plaintiffs, Borches & Co., and Donaldson Bros. appealed to this court, and assigned errors.

It appears that Driscoll & Co. were engaged in business as retail merchants at Given, Tenn., and while so engaged became indebted to Borches & Co., of Knoxville, and to Donaldson Bros., of Morristown, both being wholesale merchants, and both having sold goods to Driscoll in the course of his business. Toward the last of August, 1901, Cureton, traveling salesman for Borches & Co., demanded payment of the amount due that firm from Driscoll & Co., and, it not being paid, proceeded to buy from Heritage, the clerk of Driscoll & Co., the entire stock of Driscoll & Co., except a few odds and ends of no material value. This was done without any notice by the seller or purchaser to the creditors of Driscoll & Co. It does not appear that there was any fraud in the sale, nor that it was contrary to the wish of the firm, nor that it was not approved and ratified by the firm. On the contrary, Heritage says without objection that he had authority to sell the goods and pay the debts of the firm, and he sold for the purpose of paying the debt of Borches & Co.; and Driscoll & Co. are not complaining, or calling the sale in question. Thereupon Donaldson & Co. caused attachment to be levied upon 67 pair of shoes embraced in the sale to Borches & Co., and which had been delivered to him. Borches & Co. replevied the shoes, and claim to hold the same under their purchase. The contention in the case is that the purchase was void under the provisions of Acts 1901, c. 133. The trial judge held this act unconstitutional, and that Driscoll & Co., through their agents, had made a valid sale. The act in question is chapter 133 of the Acts of 1901, and is as follows:

Caption: "An act to provide the terms upon which sales in bulk of stocks of merchandise, or of any portion thereof otherwise than in the ordinary course of trade may be made.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that a sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller, unless the seller and purchaser shall at least five days before the sale make a full detailed inventory, showing the quantity, and so far as possible, with the exercise of a reasonable diligence, the cost price to the seller of each article to be included in the sale; and unless such purchaser shall at least five days before the sale, in good faith, make full, explicit inquiry of the seller as to the names and places of residence or place of business of each and all of the creditors of the seller, and unless the purchaser shall at least five days before the sale, in good faith, notify or cause to be notified personally or by registered mail, each of the creditors of the seller of whom the purchaser has knowledge, or can, with the exercise of reasonable diligence, acquire knowledge, of the purposed sale and of the cost price of the merchandise to be sold, and the price proposed to be paid therefor by the purchaser; and the seller shall at least five days before such sale, fully and truthfully answer in writing each and all of said inquiries: provided, however, no suit shall be brought or maintained by any creditor against such seller or purchaser within five days after he receive notice from any source of the intended sale and purchase, and any suit so brought shall be dismissed at the cost of the plaintiff in the case.

"Sec. 2. Be it further enacted, that whenever a notice as provided...