Golden Rod Milling Co. v. Connell

Mr. Justice Benson delivered the opinion of the court. 1. The sole issue upon which the trial of the cause was based, was the question as to whether or not the sale of the property in question had been made in violation of the statute known as the “bulk sales law.” After trial the defendants sought to set up the additional defense of actual fraud in the transfer. This they were not entitled to do and the trial court had no power to permit such amendment; Section 102, L. O. L.; Foste v. Standard Ins. Co., 26 Or. 449 (38 Pac. 617); Carnahan Mfg. Co. v. Beebe-Bowles Co., 80 Or. 124 (156 Pac. 584). 2. We come then to a consideration of the defendants ’ right to prevail under the provisions of the bulk sales law. It will be remembered that the sale involved in this controversy occurred in 1911, before the amendment of that statute. The original law, Section 6069, et seq., L. O. L., was amended in-1913 (Laws 1913, p. 537) and it has since been held by this court that property of the character described in the complaint was not affected by the act prior to such amendment: Rice v. West, 80 Or. 640 (157 Pac. 1105). Consequently, under the issues upon which the cause was tried, the plaintiff was entitled to the relief sought. The decree will therefore be reversed and one entered here in accordance with the prayer of the complaint. Reversed and Judgment Entered. Rehearing and Motion to Retax Costs Denied. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.