Wolf & Marks v. Kahn

Cooper, C. J., delivered the opinion of the court. The court rightly refused to charge the jury that the fact alone that Lewis Kahn carried on business in a store having on its front the name of Max Kahn rendered the goods liable to be taken in execution by the creditors of Max. It is a mistake to suppose that the effect of § 1300 of the Code of 1880 is to fix the ownership of property in the person whose name appears at the place of business, when the sign has no connection with the business and is not intended or used as an advertisement thereof. The purpose of the statute is to fix the ownership of the goods in him by whom the business is transacted, and in doing this it declares that though by the sign under which the business is conducted it may be suggested that some other person is interested therein, his claim or interest shall not be recognized as against the creditors of the person by whom the business is transacted, unless the name of such other person is disclosed on the sign in letters easy to be read. Where the sign contains the name of the person by whom the business is transacted without any other name appearing thereon, or where the addition consists of the words, “ agent,” “ Co.,” or “ Company,” or words of like import, then the statute conclusively fixes the property in him alone who transacts the business and whose name appears on the sign. It was under such circumstances that the case of Gumbel v. Koon, 59 Miss. 264, was decided, and [817] the language of the opinion is to be considered with reference to the facts before the court. It was not intended to be decided nor was it decided in that case that if one transacts business in his own name in a building on which appears a sign wholly disconnected from the business and having no reference thereto, the property used or acquired in the business becomes the property of him whose name appears on the sign. The language of that opinion, delivered by the writer, is subject to the criticism that in the last sentence the word manager is used as the equivalent of “the person transacting the business in his own name.” But on the facts testified to by the claimant himself and admitting the bond fides of the transfer of the goods, we are of opinion that the verdict of the jury is manifestly wrong. The facts are that Max Kahn was the' owner of the goods and the storehouse in which the business was conducted until three o’clock on the evening of Saturday the 10th of January, 1885. At that hour on that day Max sold the entire stock of goods and the storehouse to his clerk, Lewis Kahn, and executed a deed conveying the same to him, which deed was recorded on Monday, the 12th. Possession was delivered to the vendee at the time of the execution of the deed, and from Saturday, the 10th, to Thursday, the 15th, the business was conducted just as it had been before, so far as the public could know from appearances. The seller was in and about the store just as he had been when owner; he who had been up to that hour clerk then became owner, but the knowledge of this fact was confined to Max, Lewis, their attorney, and to one other person to whom Lewis had communicated the fact of the sale. The sign of Max Kahn remained over the door ; his revenue and privilege licenses remained posted in the room; Lewis Kahn, the purchaser, who had been the clerk, and Max Kahn, the clerk, who had been the owner, were in and about the store just as they always had been. Every appearance that would lead to the belief on the part of the public that Max was transacting the business as before was presented, and nothing was done or said from which an inference could be drawn that he had retired from business and his late clerk had embarked in it. True, Lewis and Max knew that [818] Lewis was to have the proceeds of sale, but no one else knew it. Unless one can transact business in his own name secretly, Lewis was not so engaged. If every man, woman, and child who had been familiar with the business and who entered the store after the sale had been interrogated on leaving to answer who was conducting or transacting the business then being carried on, each one would have replied “ Max Kahn,” and would have been warranted in making such reply. Under such circumstances the business was transacted by Max in his own name for the secret benefit of Lewis, and the goods were, as between Lewis and the creditors of Max, to be held and treated as the goods of Max. The judgment is reversed.