Hanson v. Knutson Hardware Co.

Eschweiler, J. Defendant contends that the written agreement between the parties of April 29th was necessarily void and affords no basis for any cause of action in favor [464] of plaintiff because the provisions of' secs. 2317c et seq.j Stats., the Bulk Sales Law, were not complied'with by the plaintiff as sellen. But by the express language of this statute the conclusive presumption of fraud arising from the sale of a stock of goods in bulk without compliance with the statutory conditions is'only for the benefit of the existing creditors of such seller. It does not affect the transaction as between the parties, prevent the passing of title to the goods, or defeat the right to recover the purchase price. Prokopovitz v. Kurowski, 170 Wis. 190, 194, 174 N. W. 448; Zahl v. Billings, 118 Wis. 459, 95 N. W. 374. It is also contended that there can be no right to recover because of sub. (2), sec. 2307, Stats., requiring that the consideration be expressed in. any written agreement wherein the party sought to be charged'makes a special promise to answer for the .debt of another; defendant insisting that, inasmuch as the agreement provided for the application by defendant of the purchase price, when agreed upon, to the payment of specified obligations of plaintiff, it was such a promise to pay the debt of another as to require, under this statute, the expression of the exact amount in dollars of an agreed purchase price, the consideration. The agreement, however, is plainly not within the class covered by that statute, the provisions here before us relating merely to the manner rather than to the purpose or object of the payment It is also contended that the provisions of sec. 2308, Stats., interpose a bar to the plaintiff’s recovery in that, this being an agreement concerning the sale of goods of-more than $50 in value, there is no proper note or memorandum in writing of any contract between them, and no accepting or receiving a part of such goods sufficient to make a binding agreement. The defendant did accept and assume possession of substantially all the personal property included in the agreement and under and pursuant to it. His sign spread across the front of the building was a public declaration that a delivery sufficient to- effect a sale had been made. His taking and re [465] taining possession of the key to the premises in which the goods were found, the assuming of control thereover, the subsequent sales by his clerk, all furnish ample support for the conclusion of the trial court that there had been a delivery and acceptance. That they remained on the plaintiff’s premises is entirely immaterial in view of the express provision to that effect in the writing which had been prepared by defendant’s manager. Again, it is contended that inasmuch as the writing provided that the payment by defendant was to be in accordance “with such terms, basis, and conditions as both parties may agree upon,” and further that the payment for same should be settled by defendant assuming specified obligations of plaintiff up to the inventory amount, and that since there had never been a meeting of the minds as to the exact price for the store fixtures or the precise terms or times of payment, the agreement continued to be merely, and at most, a promise to make an agreement in the future and therefore a situation had never been reached warranting the judgment entered. The contract in this case, however, was much more than a mere proposal to make a subsequent agreement for the sale of goods. The plaintiff, owner of the real estate on which the store was located, bound himself to furnish the premises for ninety days, rent free, to permit of the disposal or removal of the goods by defendant. This condition was carried out by the plaintiff and accepted to some extent at least by defendant. The plaintiff further bound himself not to, either directly or indirectly, engage in such business nor assist any one else to enter into competition with defendant nor to permit his real estate to be used by any competitor of defendant — a condition of evident substantial value to the latter. It is conceded that the parties did agree upon the purchase price to be fixed on the merchandise included in the transaction. The plaintiff was ready and willing to meet with [466] defendant and fix the price upon the store, fixtures. The presumption can reasonably be indulged that such price would have been fixed at a reasonable value and could have been determined by the parties, as had been that of the merchandise. The defendant’s refusal to proceed to fix such valuation was purely arbitrary, without justification, and through no default of plaintiff. There is evidence that the reasonable value of the fixtures was the amount found by the court, and defendant offered none to the contrary and ought not to be heard to now complain either as to the amount or its allowance. That defendant did not .take advantage of the provision permitting it to pay directly to plaintiff’s creditors instead of to plaintiff was defendant’s own fault. Knutson knew that plaintiff expected to pay the merchandise creditors from the proceeds of the outstanding accounts rather than from the sale of the goods, as shown by the letter of May 1st signed by plaintiff but prepared at Knutson’s suggestion. Defendant could have provided in the agreement for literal or substantial compliance by plaintiff with the Bulk Sales Law or incorporated other conditions for its protection had it so desired. The plaintiff has not defaulted in any undertaking on his part, wliile defendant has as to its agreement, and for its default tO' pay before suit it was properly held compelled to pay by suit. By the Court. — Judgment affirmed.