Taylor v. Folds

• Decision Date: 15 August 1907
• Docket Number: (No. 394.)
• Citation: 58 S.E. 683,2 Ga. App. 453
• Parties: TAYLOR et al. v. FOLDS.
• Court: Georgia Court of Appeals

58 S.E. 683

(2 Ga. App. 453)

TAYLOR et al.

v.FOLDS.

(No. 394.)

Court of Appeals of Georgia.

Aug. 15, 1907.

1. Fraudulent Conveyances—Sales—Stock in Bulk—Sale to Partner.

The act of August 17, 1903 (Acts 1903, p. 92), regulating sales of stocks of goods in bulk, being in derogation of the common law, is to be strictly construed. A sale by one partner of his interests in a mercantile business to his associates is not within the purview of the act.

2. Attachment—Claims of Third Persons.

The evidence demanded the verdict finding the property not subject.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Attachment, §§ 1102-1113.]

(Syllabus by the Court.)

Error from Superior Court, Pulton County; J. T. Pendleton, Judge.

Action by D. J. Folds against Max Ney. On levy of attachment Charles Taylor and Rosa Moskowitz filed a claim. Judgment for plaintiff, and claimants bring error. Reversed.

Frank M. Hughes and Morris Macks, for plaintiffs in error.

W. C. Munday, for defendant in error.

POWELL, J. The defendant in error, Folds, sued out an attachment against Max Ney, setting out that he was doing business under the name of Central Bakery, and obtained judgment thereon. This attachment was levied upon a delivery wagon as the property of defendant. Charles Taylor and Rosa Moskowitz filed a claim to the property. It appeared from the testimony that the debt for which the attachment issued was due Folds for repairs made by him upon the wagon. There was no evidence that Ney had title to or possession of the wagon at the date of the levy or subsequently thereto. Folds did not know at the time he did the work or at the time he sued out the attachment that any one except Ney had any interest in the Central Bakery. The wagon was brought to his shop by a son of Rosa Moskowitz; and this young man told him that Ney would pay for the work. Folds also testified that young Moskowitz afterwards came and got the wagon, and made the statement that his father, A Moskowitz, had bought out Ney and would pay the bill. To this testimony the claimant objected, but the court overruled the objection. Folds afterwards presented the bill to A. Moskowitz, who declined to pay it. The testimony of the claimant showed that the Central Bakery was a partnership, formerly composed of Ney, Taylor, and Rosa Moskowitz. Prior to the levy Ney had sold to his other partners his interest in the business, and also this wagon. At the time of the levy Taylor and Mrs. Moskowitz owned the wagon, and Ney had no interest in it. No notice of the retirement of Ney from the partnership was given. The property was found subject. The claimants obtained a writ of certiorari; but at the hearing the same was overruled, and the claimants bring error. It is the contention of the defendant in error that the sale from Ney to his other partners was void, because violative of the act of 1903, relating to sales of goods in bulk.

1. While at least one state (See Block v. Schwartz, 76 Pac. 22, 27 Utah, 387, 05 L. R; A. 308, 101 Am. St. Rep. 971) has declared that a law similar in terms to our act of August 17, 1903 (Acts 1903, p. 92), regulating sales of goods in bulk, is unconstitutional and beyond the police powers of the state, the better opinion seems to be that such laws are valid. McDaniels v. Connally Shoe Co., 71 Pac. 37, 30 Wash. 549, 60 L. R. A. 947 94 Am. St. Rep. 889; Carstarphen Warehouse Co. v. Fried, 124 Ga. 544, 52 S. E. 598; Par-ham v. Potts-Thompson Liquor Co., 127 Ga. 303, 56 S. E. 460; Sampson v. Brandon Grocery Co., 127 Ga. 454, 56 S. E. 488. Yet, since this statute is in derogation of the common law and tends to restrain the liberty of contract, it is to be...