Allison & Hyde v. Williams

McGowen, J., delivered the opinion of the court. This is an appeal from a judgment rendered by default by the circuit court of the first district of Tallahatchie county. The declaration alleges that the defendant became indebted to the plaintiffs in the sum of two hundred eighty-seven dollars, in that Williams sold to one E. A. Murphy merchandise as per itemized account attached to the declaration, which account was headed: *830 “Charleston, Miss., Nov. 5, 1925. “E. A. Murphy in account with E. E. Williams.” Then appear the items of the account showing the balance due as stated above, and an affidavit attached thereto that Murphy owes the account to Williams. However, the account and the affidavit thereto do not appear in the record, but it is conceded by both sides, so that we refer to it so that the case may be stated most strongly for the plaintiff. Allison & Hyde’s liability to Williams is fixed by the following allegations in the declaration: “That the plaintiff, E. E. Williams, sold'to one E. A. Murphy certain goods, wares, and merchandise, evidenced by sworn, itemized statement attached hereto, marked Exhibit A, and made a part hereof; and the said E. A. Murphy, who at that time owned and operated a store or merchandise business at or near .Tippo, in the first district of Tallahatchie county, Miss., promised and agreed with the plaintiff to pay the price of said goods, wares, and merchandise as set forth on said Exhibit A; and, while acting as a merchant, the said E. A. Murphy was then and there indebted to the said E- E. Williams, in the said amount of said Exhibit A, at which time and at the dates first alleged herein, without having first complied with the law in such cases made and provided, known as the ‘Bulk Sales Liaw,’ the said defendants hereto purchased from the said E. A. Murphy the certain stock of goods, wares, and merchandise, together with the fixtures then and there situated in the store of the said E. A. Murphy aforesaid, and fraudulently appropriated the same to their own uses and purposes, and mingled the said stock of goods with the said defendants’ goods. “Whereupon, as plaintiff alleges, the defendants became by such action indebted to the plaintiff in the full sum of the account, Exhibit A hereto attached, occupying the place and stead of the said E. A. Murphy in regard to the payment of said account, having as aforesaid appropriated fraudulently and unlawfully the stock of *831 goods of the said Murphy against the ‘Bulk Sales Law’ in such cases made and provided, without due notice to the creditors of the said B. A. Murphy. “Wherefore plaintiff brings this suit and demands judgment of the defendants in the said sum of two hundred eighty-seven dollars, with interest from the 10th of May, 1924, at the rate of six per cent., and all costs in this behalf expended.” The defendants were duly summoned to court and in-, terposed no plea or defense, and a judgment upon this declaration without any proof being heard was rendered for the amount of the account, with accrued interest in favor of Williams against Allison & Hyde. We are passing only upon the case presented to us here, and this case shall be authority only for the statement hereinafter set out. It will be noted that the declaration does not allege the fair market value of the stock of goods alleged in the declaration to have been sold by Murphy to Allison & Hyde, and this suit is based upon an alleged violation of the Bulk Sales Law (Laws 1908, chapter 100), and the failure of the purchaser to give notice of his purchase to the creditors of the seller. We think it was necessary to allege and prove the fair market value of the stock of goods alleged to have been unlawfully sold by Murphy to Allison & Hyde. No such allegation appears in the declaration. The judgment shows on its face, as does the record, that no proof was offered. Consequently the maximum -limit of a recow ery based upon the violation of the Bulk Sales Law would be the fair market value of the stock of goods unlawfully sold not to exceed the amount of the account (section 599, Hemingway’s Code [section 811, Code of 1906]); also for a construction of and liability under the Bulk Sales Law. (Peters Branch International Shoe Co. v. Gunn, 83, So. 742, 121 Miss. 679; Daly v. Sumpter Drug Co., 155 S. W. 167, 127 Tenn. 412, Ann, Cas. 1914B, 1101). Conceding for the purpose of settling this case that this was a proper proceeding, and that the declaration stated a cause of action, still it was incumbent upon the plain *832 tiff to impanel a. jury upon a writ of inquiry to ascertain the fair market value of the stock of goods, and the limit of his recovery would have been the -amount of his account, if less than said fair market value. Reversed cmd remanded.