Anderson v. Merchants & Miners State Bank

Russell, C. J. On May 1, 1919, the defendant in fi. fa. made and delivered to the Merchants & Miners State Bank his promissory note for $1200 in payment of 20 shares of stock at $60 per share. On March 1, 1919, after a meeting of the directors of said bank, of which the defendant in fi. fa. was one, he made and delivered to said bank his note for $850. On May 14, 1919, the defendant in fi. fa. executed two separate deeds and a bill of sale, conveying to his wife by the deeds certain realty therein described in each deed respectively, and conveying by the bill of sale a certain stock of merchandise as a whole, or in bulk. The claimant is the wife of the defendant in fi. fa. The evidence as to the bona fides of the transaction is conflicting. There was sufficient evidence in behalf of the claimant to have authorized a finding in her behalf, and yet the evidence in behalf of the plaintiff in fi. fa. is sufficient to support the verdict of the jury finding the property in dispute subject to the fi. fa. The trial judge excluded from evidence two letters written to the defendant in fi. fa., dated June 27, 1919, and September 22, 1920, respectively, by Greenway, the.cashier of the bank, the plaintiff in fi. fa., which tended to indicate, if not to establish, that the bank was in good condition, or at least solvent upon the dates referred to; and exception is taken to this ruling upon the evidence. The judge charged the jury that under the provisions of the sales-in-bulk act of 1903 (Civil Code of 1910, § 3226) the sale of the stock of goods by the defendant in fi. fa. to the claimant was void and ineffectual to convey title from [13] the former to the latter, unless an inventory had been taken and notice given to all of the creditors of the defendant in fi. fa.; and the plaintiff in error, excepting to the instruction, contends that the provision of section 3226, supra, has no application except where the creditors referred to sustain that relation by reason of the fact that the debts due them were created by the purchase of a portion or all of the goods included within the stock of merchandise, and insists that the debts due by a merchant in his personal capacity, entirely disassociated from his business as a merchant, are not within the purview of the sales-in-bulk act. Eeld: No. 4558. September 16, 1925. 1. The evidence supports the verdict returned by the jury. 2. The evidence as to the probable state of mind of one who has executed a written instrument, at a time subsequent to the making of the writing, is irrelevant and incompetent for the purpose of illustrating the intention which actuated the maker of the instrument at the prior time when it was in fact made and delivered. 3. By the express terms of section 3226 of the Civil Code (1910), “it shall be the duty of every person who shall bargain for or purchase any stock of goods, wares, or merchandise in bulk, for cash or credit, . . to demand and receive from the vendor thereof . . a written statement under oath of the names and addresses of all the creditors of said vendor” (italics ours), thus drawing no distinction between those creditors whose debts may have arisen from sales of merchandise and such creditors as sustain that relation by reason of indebtedness created by the debtor for other independent and disassociated reasons. Section 3226, supra, applies as well to a sale of a stock of goods in bulk by a debtor to a creditor in extinguishment of his debt as to a sale for cash or on credit. Sampson v. Brandon Grocery Co., 127 Ga. 454 (56 S. E. 488, 9 Ann. Cas. 331). It comprehends sales of every character. Nothing herein ruled conflicts with the decision of this court in Cooney v. Sweat, 133 Ga. 511 (66 S. E. 257, 25 L. R. A. (N. S.) 758), in which the court ruled that the sale of an entire stock of lumber manufactured by a sawmill was not within the purview of section 3226, supra, because the application of the act of 1903 was restricted to a sale of “any stock of goods, wares, or merchandise in bulk,” there being no contention that the stock involved in the case at bar was not one of “goods, wares, and merchandise. ” Judgment affirmed. All the Justices concur. Thomas A. Brown and Morris, Hawlcins & Wallace, for plaintiff in error. William Butt, contra.