Miller-Allaire Co. v. Hutcherson

*458 Ethridge, J., delivered the opinion of the court. The appellant was plaintiff in the court below, and brought suit against appellees, H. G. Hutcherson, J. C. Eedditt, and Miss Pearl Kennon, for account of goods sold to J. C. Eedditt & Co. It was alleged in the declaration that without compliance with the Bulk Sales Law they sold their stock of goods to the defendant Hutcherson, without giving Hutcherson a correct list of creditors, and without Hutcherson’s giving five days’ notice to complainants as required by law, and without paying this claim; but it did not allege the value of said stock of goods so sold. Eedditt was not served with process, and Miss Kennon filed an- affidavit that she was not a partner in the business, and therefore was not liable for the account. There was a peremptory instruction in the court below in favor of Hutcherson, and the issue as to partnership as against Miss Kennon was submitted to the jury, and the jury returned a verdict in her favor. Plutcherson filed a plea setting up that he had complied with the Bulk Sales Law, but it was agreed in the court below that Hutcherson did not give notice to the appellant as one of the creditors, and that he did not know of such creditor. Proof on the part of Hutcherson was to the effect that he made inquiry, in good faith, as to the creditors, and that a list of creditors was furnished, but the appellant was not included in such list. We have previously decided that a purchaser of a stock of goods in bulk buys at his peril, and that good faith in reliance upon a list furnished does not protect the pur *459 chaser where the creditor of the seller is not furnished with notice. Walton v. Walter Fisher Co., — Miss. —, 111 So. 364. In the present case, however, there was no allegation of the .value of the stock of goods in the declaration, and this was necessary. Allison & Hyde v. Williams, 142 Miss. 825, 108 So. 142, in which the court held that, in a suit based on alleged violation of the Bulk Sales Law (Laws 1908, chapter 100; Hemingway’s Code, section 3129), because of failure of purchaser to give notice to seller’s creditors, the fair market value of goods alleged to have been unlawfully sold must be alleged and proved, and, even though no defense was interposed, jury should have been impaneled on writ of inquiry to ascertain fair market value. In the case of M'eLendon v. People’s Bank of Lumberton, — Miss. —, 111 So. 843, we held that under a proceeding setting up a sale in.violation of the Bulk Sales Law (Laws of 1908, chapter 100; Hemingway’s Code, section 3129), it is necessary to allege and prove the value of the stock of goods at the time of the alleged sale. It may be that the peremptory instruction in favor of Hutcherson was based upon this failure to so allege. The party must stand upon the pleadings, and if he does not make a case in the pleadings, and lets the trial go to judgment, he cannot complain of the judgment against him where the defect is not cured by the statute of jeofail. Consequently, the judgment of the court below must be affirmed. Affirmed.