R. S. Newman v. Martin C. Garfield

• Decision Date: 19 November 1918
• Parties: R. S. NEWMAN v. MARTIN C. GARFIELD
• Court: Vermont Supreme Court

104 A. 881

93 Vt. 16

R. S. NEWMAN v. MARTIN C. GARFIELD

Supreme Court of Vermont

November 19, 1918

Special Term at St. Johnsbury, April, 1918.

ACTION OF TROVER to recover the value of certain goods, and a count in trespass quare clausum for breaking and entering plaintiff's store, and there selling and carrying away the same goods. Plea, the general issue, and notice of special matter in justification that defendant, as deputy sheriff, sold the goods on an execution against one M. H Lewis, and that the goods were the property of said Lewis. Trial by jury at the June Term, 1917, Caledonia County, Fish J., presiding. The jury returned a general verdict for the plaintiff to recover $ 343.75, and returned a special verdict that the value of the goods sold by the defendant was $ 817.75. Judgment on the general verdict. Both parties excepted. The opinion states the case.

Judgment reversed, and judgment for the plaintiff for the sum of $ 817.75, with interest thereon from February, 17, 1917, and his costs.

Elisha May and W. W. Reirden for the plaintiff.

Frank D. Thompson and Portor, Witters & Harvey for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

M. H. Lewis was a merchant at West Burke. On July 7, 1916, in good faith and for an adequate price, he sold his stock of goods to this plaintiff, who paid for and took possession of the same, and continued the business in the same store which he rented of Lewis for that purpose. At the time of this transaction Lewis owed the Haskell-Armstrong Company, of Portland, Me., an unpaid bill for merchandise, and that concern brought suit against him and attached the goods in the plaintiff's possession, and having obtained judgment therein, took out an execution and sold a part of these goods to satisfy the same. The defendant is the deputy sheriff who did the business for the Haskell-Armstrong Company, and the action is tort for the conversion of the goods. The defence is predicated upon a noncompliance by Lewis and the plaintiff with the terms of the "Bulk Sales Law" (P. S. 5010 [G. L. 6013]).

By that statute it is provided that the sales in bulk of a part or the whole of a stock of merchandise "shall be fraudulent and void as against the creditors of the seller," unless certain things are done by the parties to the sale.

The first important question in the case is as to the true meaning of the terms "fraudulent and void" as here used. Notwithstanding these positive terms, as was said by Judge Poland in Woodcock v. Bolster, 35 Vt. 632, in many cases where statutes use the word "void " it is construed to mean "voidable."

Thus in Merrill v. Englesby, 28 Vt. 150, this Court had under consideration a statute providing that general assignments should be "null and void as against creditors of said debtors"; and it was held that such assignments were voidable at the instance of creditors. And in the recent case of Tudor v. Tudor, 80 Vt. 220, 67 A. 539, 130 Am. St. Rep. 977, this Court had under consideration P. S. 5782 (G. L. 6893), which provides that fraudulent conveyances of houses and lands, or of goods and chattels shall be, as to the party defrauded, "null and void." Upon full consideration and discussion, it was held that by proper construction the statute made such conveyance voidable merely.

Here, then, is the construction of a statute sufficiently cognate to be in pari materia; and it is the established rule that such statutes are to be construed with reference to each other, as parts of one system. Isham v. Bennington Iron Co., 19 Vt. 230; State v. C. V. Ry. Co., 81 Vt. 463, 71 A. 194, 130 Am. St. Rep. 1065. This rule necessarily involves recourse to the construction of such statutes by the courts. Endlich, Interp. par. 367.

So it is that, when in a later act, on the same general subject, the Legislature makes use of a particular word or form of words which the courts have construed, it is to be presumed, in the absence of anything to the contrary, that it used such words in the sense attributed to them by such construction. Whitcomb v. Rood, 20 Vt. 49.

We have no hesitation, therefore, in holding that this statute really means that bulk sales are constructively fraudulent and voidable at the instance of creditors, and that as between the parties the transaction is final and binding, with title passing to the purchaser, where it remains until divested by proceedings instituted by a creditor for that purpose.

This view of the statute is approved in McGreenery v. Murphy, 76 N.H. 338, 82 A. 720, 39 L.R.A. (N.S.) 374; Kelly-Buckley Co. v. Cohen, 195 Mass. 585, 81 N.E. 297, and Rothchild Bros. v. Trewella, 36 Wash. 679, 79 P. 480, 68 L.R.A. 281, 104 Am. St. Rep. 973.

The next question of importance relates to the remedy available to the creditor. On this subject the statute in question is silent. It must be taken, therefore, that it was the intent of the Legislature that the creditor should resort to such remedy or remedies as the law then provided in similar cases. Here, again, reference may be had to the statutes on the same or analogous subjects and the remedies therein provided. Thus consistency and harmony throughout a particular topic of the law will be secured. While this statute establishes a new and drastic restraint upon the free disposition of a certain class of property, in essence it is nothing more than a further extension of the general scheme of preventing fraudulent conveyances. So in our search for the...