Tupper v. Barrett

Crosby, J. This is an action of tort brought for the alleged conversion of five tip carts, one show wagon and six sets of double harnesses. The defendant having died since the date of the writ, Florence G. Barrett, the administratrix of his estate, has been summoned to defend the action. The case was tried before a judge of the Superior Court without a jury, who made certain findings of fact and found for the defendant. On May 11, 1914, the articles in question were attached by the defendant, a deputy sheriff, on a writ in which C. W. Bowker and Company, a corporation, was named as plaintiff and George H. Dumas was defendant; the property was afterwards sold on an execution which issued on a judgment in favor of the plaintiff in that action. The plaintiff claims title to the property by virtue of a sale to him by Dumas as evidenced by a bill of sale dated April 2,1914. . [568] The trial judge made the following and other findings of fact: “I find that said Dumas maintained a stable on Foster Street in Worcester, and that he sold horses, wagons and harnesses, and also did some transient livery business, and that at the time of said sale he used some of his horses, wagons, carts and harnesses in doing a certain excavating job. “I find that the sale of the five dump carts, one wagon and six-sets of double harnesses mentioned in the plaintiff’s' declaration was a sale in bulk of a part of the stock of merchandise of said Dumas. “ I find that at the time of said sale Dumas was indebted to said C. W. Bowker and Company to an amount exceeding $500 and that he also had other creditors at the same time. “I find that the sale was not made'in the ordinary course of trade and in the regular and usual prosecution of the seller’s .business.” The judge also found that no inventory was made and no-notice given to the seller’s creditors as provided for by St. 1903, c. 415. It is conceded by the plaintiff that the provisions of the statute referred to were not complied with, it being his contention that the sale in question was not a sale of “merchandise” as that word is used in the statute, and that the articles so sold were in the nature of fixtures which the seller used in the usual course of his business. In other words, the plaintiff claims that the sale to him by Dumas was not within the provisions of the statute. The word “merchandise” is a word of large signification and has been held to be synonymous with tangible property which could be sold. New England & Savannah Steamship Co. v. Commonwealth, 195 Mass. 385, 390. In this connection see Tisdale v. Harris, 20 Pick. 9, 13; Burgess v. Alliance Ins. Co. 10 Allen, 221; Tobey v. Kip, 214 Mass. 477. We are of opinion that the word “merchandise” as used in the statute in question may be found to include the property which was sold to the plaintiff, especially in view of what was sought to-be accomplished by the act, which, as was stated by Chief Justice Knowlton, in John P. Squire & Co. v. Tellier, 185 Mass. 18, at page 19, “was to provide for creditors protection against a class of sales which are frequently fraudulent, and [569] which leave creditors with no means of collecting that which they ought to receive.” Dumas testified that while his principal business was trading, buying and selling horses, he sometimes bought horses and carriages; that he “would buy an entire team and sell it. Sold tip carts and harnesses — anything that was lawful.” Upon this evidence and the other evidence recited in the record, the judge could have found that, previously to the sale to the plaintiff, Dumas had sold in the ordinary course of trade in the regular and usual prosecution of his business, articles of the nature of those in question; it also could have been found that when the sale to the plaintiff was made Dumas had formed the intention of selling his entire stock of merchandise, and that the sale to the plaintiff was in pursuance of that intention and was a “sale in bulk” of a part of a stock of merchandise, rather than in the ordinary course of trade in the regular and usual prosecution of the seller’s business, and was therefore voidable by the attaching plaintiff, a creditor of the seller. Hart v. Brierley, 189 Mass. 598, 601. Gallus v. Elmer, 193 Mass. 106. Adams v. Young, 200 Mass. 588. Rabalsky v. Levenson, 221 Mass. 289. Mills v. Sullivan, 222 Mass. 587. The rulings requested by the plaintiff (except the third which was made) were rightly refused. The exception to the admission of the advertisement cannot be sustained; it was competent to show the nature of the sale to the plaintiff, and could have been found to have been ordered published by him, or at least with his knowledge and consent. We find no error of law in the findings and rulings made, or the refusals to rule. Exceptions overruled.