Goodman v. Clarkson

147 S.E. 183, 39 Ga. App. 383, 1929 Ga. App. LEXIS 325

• Court: Court of Appeals of Georgia
• Decided: February 28, 1929
• Docket: 18934
• Status: Published

Opinion

Stephens, J.

1. A sale or transfer of a stock of goods, wares, or merchandise may amount to a fraud, under the bulk-sales act of 1903 (Civil Code of 1910, §§ 3226-3229), although only a part of the stock be sold, where the sale is “out of the usual or ordinary course of the business or trade of the vendor.” Where a person engaged in the business of “selling Reo automobiles” maintains his principal office and place of business in one city and maintains a branch office and place of business in another city, and at the latter place keeps a stock of goods, wares, and merchandise, consisting of second-hand automobiles, office furniture, fixtures, automobile parts, and shop equipment, a sale by him of the entire stock of goods, wares, and merchandise kept at the branch place of business constitutes a sale “out of the usual or ordinary course of the business or trade of the vendor,” and where made without a compliance with the provisions of the bulk-sales act as respects notice to creditors, etc., is under the provision of the act, a fraud against the existing creditors of the vendor. Keller v. Fowler, 148 Tenn. 571 (4) (256 S. W. 879).

2. Whether or not the sale of a stock of goods, wares, and merchandise in bulk, which is fraudulent under the bulk-sales act, could be attacked by the then-existing creditors of the vendor in a suit against the purchaser to recover the value of the goods (Jaques & Tinsley Co. v. Carstarphen, 131 Ga. 1, 62 S. E. 82), yet where the vendor has afterwards become a bankrupt, the trustee in bankruptcy can, under the authority of § 70-e of the bankruptcy act, maintain a suit against the purchaser for the benefit of the creditors of the vendor, existing at the time of the sale. Dodd v. Raines, 1 Fed. (2d) 658; Gross v. Grossman, 2 Fed. (2d) 458.

Decided February 28, 1929. Terrell & Terrell, Ilooper & Hooper, for plaintiff in error. Harry L. Greene, Noah J. Slone, contra.

3. In a suit by the trustee in bankruptcy against the purchaser of a stock of goods, wares, and merchandise, to recover the value of the goods, upon the ground that the sale was fraudulent under the provisions of the Georgia bulk-sales law, it is immaterial whether or not the vendor was a corporation or a partnership; and where the suit is instituted against the defendant as an individual, doing business under a particularly described “company,” it is immaterial whether or not the “company” is a corporation or a partnership. See, in this connection, Charles v. Valdosta Co., 4 Ga. App. 733 (62 S. E. 493) ; Weller v. Davis, 15 Ga. App. 79 (82 S. E. 593).

4. The court properly overruled the demurrer to the petition.

Judgment affirmed,.

Jenkins, P. J., and Bell, J., concur.