Mahoney-Jones Co. v. Sams Bros.

Mb. Chief Justice Neil delivered the opinion of the Court. E. G-. Sams, being the owner of a small stock of .goods at Elkanah, in Carter county, separated from that stock certain goods to the value of about one-half of' the whole stock, and sold these to defendant B. M. Brumit, in payment of a debt which the latter held’ against Sams Brothers, a firm of which E. Gr. Sams had been a member. At the time the sale was made this firm was out of business, and had no property. The provisions of our Bulk Sales Law (Laws 1901, ch. 133) were not complied with. Brumit intermingled the goods he had so purchased with his other goods in such way that they could not be distinguished. The present suit was brought by Mahoney-Jones Company, an individual creditor of E. Gr. Sams, and the Standard Grocery Company, a creditor of the firm, to hold [210] Brumit liable for the value of the goods so purchased. The chancellor granted the relief sought, and the court of civil appeals affirmed the judgment. The case is here on certiorari to the latter court. The first defense made is that the bill describes the Mahoney-Jones Company as a creditor of the firm, while the evidence shows it was only an individual creditor of defendant E. G. Sams, hence that there is a fatal variance between the allegata and the pro-bata. The variance is immaterial in the present case, because no relief is sought against the partnership, and each member of the firm is individually liable for the debts of the firm; partnership debts being in this State several as well as joint. House v. Thompson, 3 Head, 512; Act 1789, ch. 57; Shan. Code, sec. 4486. The firm having no assets, the question does not arise of - settling equities between firm creditors and individual creditors in respect of partnership property or individual property under the principles laid down on that subject in Pennington v. Bell, 4 Sneed, 200, Jackson Insurance Co. v. Partee, 9 Heisk, 296, and Fowlkes v. Heirs and Creditors of Bowers, 11 Lea, 144, 146. The next defense is that in no aspect of the case can the Standard Grocery Company have relief, inasmuch as it is a firm creditor, and our Bulk Sales Law does not require notice to be given to creditors of that class on sale of an individual stock of goods owned by one member of such firm. The principle stated in the last paragraph as to the several charac [211] ter of partnership obligations fnlly meets this contention. The same result is reached from a consideration. of the language of the statute itself. It requires the purchaser to make “full, explicit inquiry of the seller as to the names and places of residence or place of business of each and all of the creditors of the seller,” and requires'him to notify “each of the creditors of the seller of whom the purchaser has knoweldge, or can with reasonable diligence acquire knowledge.” The act provides that the sale shall he' presumed to he fraudulent and void as against “the creditors of the seller, unless,” etc. The statute is reproduced in Daly v. Sumpter Drug Co., 127 Tenn., 412, 155 S. W., 167. We are referred to Whitehouse v. Nelson, 43 Wash., 174, 86 Pac., 174, as announcing a different rule from that stated herein. That case holds that, under the Washington statute, on sale of a stock' in bulk by a firm it is not necessary to give notice to the individual creditors of the members of the firm. On the contrary, in People’s Savings Bank v. Van Allsburg, 165 Mich., 524, 131 N. W., 101, it is held, construing the Michigan statute (Pub. Acts 1905, No. 223), that notice must he given to all creditors. In that case the special question was whether the statute meant mercantile creditors only. Construing the language “the creditors of the seller,” and “upon application of any of the creditors, ’ ’ and upon compliance shall not he liable to “any of the creditors,” the court held that the intention was to embrace all creditors of the seller. We [212] have no copy of the Washington statute, and are therefore unable to compare the construction given to that-statute with the construction herein given to our own.. Therefore the decision cannot assist us in any degree. We may add, which is indeed hut a truism, that,, while a construction given to a foreign statute closely similar to one of our own is undoubtedly useful as. the opinion of learned persons on the meaning of ascertained language, and therefore to he accorded respectful consideration, it is in no sense authoritative, nor is it as persuasive as a deliverance of the .same-court upon the common law. Each sovereignty must construe its own statutes. It is not doubted, nor indeed can he, that the sale of half of a stock of goods is a violation of the law in question, and that the purchaser is liable directly to creditors for the value of the goods, without the necessity of attaching them, when he has intermingled them with other goods, thereby making them practically-indistinguishable. Daly v. Sumpter Drug Co., supra. There is no error in the judgment of the court of' civil appeals, and it is accordingly affirmed.