Groves v. Kilgore

WaltoN, J. Tbe insolvent law of this State declares that tbe debtor shall not be discharged, if, being a merchant or trader, be has not, since tbe passage of tbe act, kept a cash book, and other proper books of account. Act 1878, § 42. In this case, tbe debtor’s discharge is objected to upon tbe ground that be has been a livery-stable keeper since the passage of tbe act, and that a livery-stable keeper is a trader within the meaning of tbe law, and that, being such trader, be did not keep a cash book. Tbe debtor admits be did not keep a cash book, but be denies as matter of fact that be has been a livery-stable keeper, and be denies as matter of law that a livery-stable keeper is a trader. Tbe parties have been permitted to have tbe question of fact determined by a jury, and tbe jury found that tbe debtor bad been a livery-stable keeper, and bought bay and grain and sold it by keeping borses to bait and board at bis stable. There is no motion to have tbe verdict set aside, and the only question for tbe law court is whether tbe presiding judge ruled correctly in bolding that, a livery-stable keeper, who buys hay and grain and sells it by keeping borses to bait and board, is a trader within tbe meaning of tbe law. [491] We think the ruling was correct. It is settled law in England that a livery-stable keeper is a trader. He is so classed in the English bankrupt act of 1869. And it is so heldin this country. Re Odell, 17 Bankr. Reg. 73. It was there held that a livery-stable keeper,"who takes horses to board, cannot have a discharge, if he has not kept proper books of account. U. S. Dig. for 1878, p. 85, § 194. In a general sense any one who buys and sells is a trader. But occasionally buying and selling will not necessarily make one a trader under bankrupt and insolvent laws. To make one such he must buy and sell as a business. Not necessarily as his only business. The same person may engage in many kinds of business. Nor is a large amount of buying and selling necessary to create a trader. There are small traders as well as large traders. To draw the line, however, between an occasional buyer and seller, and one ivho makes it a business to buy and sell, is not easy. It is mainly a question of intent; and, like all questions of intention, each individual case must be determined by the circumstances attending it. To constitute a trader It is not necessary that he should sell the articles in the same condition as -when he bought them. A butcher, 'who buys cattle and sells beef, a shoemaker who buys leather and sells shoes, a baker who buys his materials and sells bread, a brickmaker who buys his earth and sells bricks, a carriage maker who buys his materials and sells carriages, are held to be traders within the meaning of bankrupt and insolvent laws. The important fact is whether the seller is also a buyer, for it is usually the buying, and the buying on credit, and not the selling, that runs him into debt, and ultimately makes a bankrupt of him. A livery-stable keeper is one who takes horses to bait and board ; and he usually keeps horses to let; but the reason why he is held to be a trader is not because he lets horses, not because he occasionally sells a horse when he is no longer fit for his business, but because it is a part of his business to buy hay and grain and to sell it again in the form of feed for the horses of others. Baiting and boarding the horses of others, and receiving pay for so doing, is regarded as a selling of the [492] feed purchased, and in a form less changed than the articles sold by the baker, or the butcher, or the shoemaker, or the brick-maker ; and the same reason exists why he should keep proper books of account. In this case, the jury not only found that the insolvent was the keeper of a livery stable, but they found separately and distinctly that he bought hay and grain and sold it by keeping horses to bait and board at his stable. We think there was no error on the part of the presiding judge in holding that he was a trader,- that the written objections to his discharge were sufficient in substance and in form; and that his discharge was rightly refused. Abbott’s Law Diet. Trade; Trader; Tradesman, and cases cited. Bouvier’s Law Diet. Trader, and ■cases cited. Hamlin’s Insolvent Law of Maine, 58, and cases cited. Exceptions. overruled. AppletoN, C. J., Barrows, Yirgin, Libbev and Svmonds, JJ., concurred.