Kett v. Masker

The opinion of the court was delivered by Minturn, J. The District Court, upon a basis of fact, furnished by the testimony, found that the sale in bulk, in this ■case, to Jaeger, was void as having been made fraudulently in •contravention of the provsions of the so-called Sales in Bulk act. Pamph. L. 1907, p. 570. We think the testimony was ■ample to warrant the finding. There is nothing in the testimony from which we can reasonably infer that either the plaintiff or his vendor, Jaeger, made the slightest pretext to ■comply with the provisions of that act. Their failure to do ■so is defended upon the ground, inter alia, that the act is unconstitutional as contravening the fourteenth amendment of the federal constitution. Substantial^, similar statutes in •other jurisdictions have been held to be constitutional. Thorpe v. Penrock Company, 99 Minn. 22; Williams v. Wischita Bank, 156 Okla. 477; Squrer v. Tellier, 155 Mass. 118; Nees v. Borckes, 109 Tenn. 398. The United States Supreme Court, in Kydd & Co. v. Musselman Company, 217 U. S. 461, upheld the constitutionality of the Michigan act which had been sustained in that jurisdiction. Spurr v. Travis, 145 Mich. 721. The general authority and policy of legislative regulation ■of this character is vindicated upon the theory of the police •power for the suppression of fraud, and the protection of legitimate business. Lemieux v. Young, 211 U. S. 489. [100] The plaintiff’s title depends upon the validity of his vendor’s title. If that was Void by reason of the application of the Sales act to the facts, the plaintiff’s title necessarily falls. His contention that the defendant is not a creditor within the meaning of the act is unsubstantial. Defendant, as a properly authorized officer of the law, represents a judgment creditor upon a writ of attachment, and for this purpose the creditor acts through him. Qui facit per alvwm facit per se. Equally unsubstantial is the contention that the defendant cannot raise the question of title in this proceeding, but must attack the sale by a direct proceeding for the purpose of invalidating it. The general policy and purpose of the act upon proof of the facts is to render the alleged sale null and void, ah initio,- “as against the creditors of tire seller” (section 1). The trial court, upon a' contest involving the plaintiff’s title and right to possession, which were clearly in issue (Brevman v. Reinhorn, 71 N. J. L. 422; Duplessis v. Moine, 87 Atl. Rep. 111; Petchink v. Rich, Id. 98), held, that by reason of the existence of the fraud contemplated by the statute, the plaintiff had not acquired title. This finding quite manifestly upheld the validity of defendant’s levy under the writ of attachment, and warranted the entry of this judgment. The, objections raised to the rulings of the trial court require only the comment that they were in effect unprejudicial to the plaintiff’s case. ■ , • The judgment will be affirmed, with costs.