Reed v. Walker

4 Ohio Law. Abs. 458

• Court: Montgomery County Court of Common Pleas
• Decided: April 14, 1926
• Docket: No. 56947
• Status: Published

Opinion

SNEDIKER, J.

The facts in this case disclose that in Sept. 1924, Wm. M. Reed sold to C. L. Killpack a certain confectionery and delicatessen, taking a - series of notes as part of purchase price; that in Sept. 1925, while some of these notes, payable to Reed, still remained unpaid Killpack sold said store to Walker; and that Walker, before purchase personally notified Reed of this contemplated purchase and of the terms thereof.

After the sale had been consumated, Reed asked that, because Walker had not demanded a sworn list of creditors, he should be declared a trustee for benefit of creditors in accordance with the provisions of 11102 GC.

Montgomery Common Pleas in denying the relief prayed for, and in rendering judgment for Walker, held:

1. Reed is not such a creditor as it contemplated in the Bulk Sales Act. (11102 GC.)

2. Altho Hamilton Appeals in 7 App. at page 382, (citing 92 OS. Pg. 115) states that 11102 GC refers to all classes of creditors, this court believes that such is not the law as decided by the said case cited.

3. The Bulk Sales law is stringent, extraordinary and controvenes common law, and should therefore be strictly construed as applicable to merchandise creditors.

4. Other than merchandise creditors are amply protected by the provisions of 11104 GC. providing for appointment of a receiver in case of attempted fraud upon such creditors.

,5. Even if Reed were a creditor within the provisions of 11102 GC. this court would be disinclined to appoint a trustee because of the knowledge and opportunity for protection which he had before the sale.

Judgment accordingly.