Young v. Lbmieux

• Decision Date: 16 January 1907
• Citation: 79 Conn. 434,65 A. 436
• Court: Connecticut Supreme Court
• Parties: YOUNG v. LBMIEUX

65 A. 436

79 Conn. 434

YOUNG

v. LBMIEUX.^*

Supreme Court of Errors of Connecticut.

Jan. 16, 1907.

Appeal from Superior Court, New London County; Edwin B. Gager, Judge.

Suit by James M. Young, as trustee in bankruptcy of P. E. Hendrick, against Joseph A. Lemieux. From a judgment in favor of plaintiff, defendant appeals. A demurrer to plaintiff's plea in abatement of the appeal was sustained and the judgment affirmed.

John J. Phelan, for appellant. Donald G. Perkins and Jeremiah J. Desmond, for appellee.

HALL, J. The plaintiff is the trustee of the estate of P. E. Hendrick, who was adjudicated a bankrupt upon the petition of sundry creditors, dated September 19, 1904. On and for some years prior to August 31, 1904, said Hendrick conducted personally in his own name and in his building in Taftville, in this state, a retail general store and meat market, and at the same time, in a store hired by him on the opposite side of the street, carried on a separate and independent retail drug business under the name of the "Taftville Drug Company," which was managed by a licensed druggist employed by him. The value of the stock in the general store was about $2,000, and of the stock, fixtures, and soda fountain in the drug store, about $3,500. There was no evidence at the trial of the separate value of the stock, fixtures, and soda fountain. On August 31, 1904, said Hendrick, at a single transaction, and not in the regular course of business, and without any written bill of sale, and without having caused to be recorded the notice of his intention to make such sale required by chapter 72, p. 49, of the Public Acts of 1903, sold and delivered to the defendant said drug store and the whole of his stock, fixtures, and soda fountain therein for the price of $3,500, receiving therefor from the defendant $50 in cash, a small indorsed check, one note for $2,000 payable in five days, and one for $1,400 payable in seven days, both being signed by the defendant as agent. It was understood between Hendrick and the defendant that payment of said notes would not be demanded before January 1, 1905. The defendant has never paid said notes, and it did not appear at the trial that payment thereof had ever been demanded. The defendant had been managing said drug business, as a clerk for Hendrick, for two months before such sale, with the expectation of eventually buying it. He had no property, had previously failed in business, and was owing debts on account thereof, and for that reason signed said notes as agent. After such purchase, the defendant continued to conduct said drug business, purchasing goods in small amounts from time to time from the receipts of the business to keep up the stock, and drawing from the receipts about $16 a week for his living expenses until the goods were replevined by the plaintiff in January, 1905. At the time of said sale, Hendrick was largely indebted and was being pressed by his creditors, but he did not believe that he was in fact insolvent. His general store was closed by attachment on the 16th of September, 1904. The property in the hands of the plaintiff is insufficient to pay the claims of Hendrick's creditors.

The trial court held that the sale to the defendant was not made to hinder or defraud creditors, nor in contemplation of insolvency, but that it was void under chapter 72, page 49, of the Public Acts of 1903, and section 4869 of the General Statutes of 1902, and rendered judgment for the plaintiff. In his reasons of appeal the defendant claims that the trial court erred in holding, upon the facts above stated, that the sale of the drug business was a sale by Hendrick of "the whole or a large part of his stock in trade," within the meaning of chapter 72, page 49, of the Public Acts of 1903, and was void under said act and section 4869 of the General Statutes of 1902, and in not holding that said act of 1903 was in conflict with the state and federal Constitutions. In this court the plaintiff pleaded in abatement of the defendant's appeal that the finding of facts for the appeal was filed and notice thereof given to the defendant on July 26, 1906, and that the appeal was not filed until August 11, 1906, and not within 10 days after such notice of the filing of the finding. To this plea the defendant demurred upon the ground that he was not required to file his appeal within 10 days after July 26th, since chapter 24, page 264, of the Public Acts of 1905 provides that "all proceedings to make or complete the record on such appeal shall be suspended during the months of July and August."

The plea in abatement is insufficient The appeal was filed in time. The filing of the finding in July and of the appeal in August were effective, notwithstanding the provision that all proceedings should be suspended during those months. That provision was not intended to prevent either court or counsel from filing the necessary papers to make or complete the record on the appeal, during the months of July and August, to become operative upon the expiration of that period.

As the drug store was not conducted as a part of the business of the general store, but as a separate and independent business, carried on in another building, and under another name, the decision of the trial court that the sale was within the statute is clearly sustainable upon the ground that it was a sale of Hendrick's whole stock in trade in an independent business. Section 4868 as amended by chapter 72 of the Public Acts of 1903 is not invalid as conflicting with either the federal or state Constitution. In 1901 an act entitled "An act concerning sales of personal property" was passed, which provided, in effect, and as afterward stated in section 4868 of the General Statutes, that any sale by such dealer, at a single transaction, and not in the regular course of business, of the whole or a large part of his stock in trade, should be in writing, describing the property sold, and all the conditions of the sale, acknowledged before competent authority, and recorded within one day after the sale in the town clerk's office where the vendor has his place of business, and, as afterward stated in section 4869 of the General Statutes, that such sales made without these formalities should be void as against the creditors of the vendor at the time of the sale. Pub. Acts 1901, p. 1356, c. 161. In 1903 the act was passed entitled "An act concerning the transferring of a person's business," which was in force at the time the sale in question was made, and which reads as follows: "Section 4868 of the General Statutes is hereby amended to read as follows: No person who makes it his business to buy commodities and sell the same in small quantities for the purpose of making a profit, shall, at a single transaction and not in the regular course of business, sell, assign, or deliver the whole, or a large part of his stock in trade unless he shall not less than seven days previous to such sale, assignment or delivery, cause to be recorded in the town clerk's office in the town in which such vendor conducts his said business, a notice of his intention to make such sale, assignment or delivery, which notice shall be in writing describing in general terms the property to be so sold, assigned and delivered, and all conditions of such sale, assignment or delivery, and the parties thereto." Pub. Acts 1903, p. 49, c. 72. Said act neither repealed nor changed section 4869 of the General Statutes of 1902. In 1905 section 4868 of the General Statutes was further amended so that instead of absolutely prohibiting such sales without such notice, as the language of that section did, It should only render them void as against the vendor's creditors. Pub. Acts 1905, p. 408, c....