Opinion
Writ of error refused November 11, 1925.
June 4, 1925. Rehearing Denied June 25, 1925.
Appeal from Harris County Court, at Law; Roy F. Campbell, Judge.
Action by the Brecht Company against Joe Robinowitz. From a judgment for defendant, plaintiff appeals. Affirmed.
Cole, Cole O'Connor, and Bennett B. Patterson, all of Houston, for appellant.
Harry W. Freeman, of Houston, for appellee.
This cause involves a construction of R.S. art. 3971, as applied to this state of facts, which we find to be in all material respects undisputedly shown in the record brought up.
On April 10, 1923, appellee, Robinowitz, bought from C. E. McFarland, as the owner of a place of business in Houston known as "the Central Meat Market," the fixtures thereof, taking possession of them that day; contemporaneously with the purchase, Robinowitz, in good faith demanded and received, as in compliance with our "Bulk Sales Act," an affidavit from McFarland purporting to be a true and correct statement of the names, etc., of all his creditors, which, however, he later found to be incorrect because of the omission of several creditors with whom this litigation has nothing to do, and in like manner demanded a further one; accordingly, on the next day, April 11, McFarland made and gave Robinowitz the affidavit here involved, which purported to be a compliance with the statute and to give a list of his only creditors, including their names, residences, the amounts due each, and stated:
"That he owes no other persons or corporation anything for either merchandise or fixtures, or other articles purchased in connection with the conduct of said business, and that the above named are all of his creditors and that there are none others."
Robinowitz, having at that time no knowledge of the existence of any creditors not named in this new affidavit he had required, immediately notified all those that were named of his purchase of the fixtures, and then, after waiting more than 10 days thereafter, and still having no knowledge of the existence of any others, paid them all in full the amounts so listed as being due them, in fact some of them more, and some months later, that is, in June or July, paid McFarland $1,074 as the final balance of the purchase price due him after deduction for the sums theretofore paid direct to his creditors: subsequent to this final settlement with McFarland, it developed that appellant, and two other creditors with whom we are not concerned, had been designedly on his part left out of this sworn list of April 11, none of them having been included in the first list either, and that on the dates of both affidavits he had owed appellant a debt for equipments furnished him in the operation of this particular business, while he was the owner of it, of $215.
In this action appellant sought to recover this amount of the appellee, under allegations that in buying the fixtures he had failed to comply with the requirements of the act referred to. In addition to other facts, which have been included in the preceding statement, the jury found in response to a further special issue that Robinowitz did "at least 10 days before taking possession of or paying for the Central Meat Market demand and receive from McFarland a written list of the names and addresses of the creditors of the said McFarland with the amount of the indebtedness due or owing each of such creditors and certified to by said McFarland under oath as a full, accurate, and complete list of his creditors and of his indebtedness," and judgment upon the verdict followed in his favor.
Under our construction of the statute, the judgment was proper; this for at least two reasons: (1) Robinowitz, having no knowledge aliunde of appellant's existence as a creditor, was entitled to take the seller's sworn statement made pursuant to the terms of the statute at face value; (2) having, by the uncontroverted testimony, notified all the creditors named in the list more than 10 days before paying for the fixtures, he had done all that was required of him.
Appellant's view would require the act to be interpreted as meaning that a purchaser in such circumstances, whatever his own good faith in the matter, accepts at his peril the sworn statement of the seller and must lose if the latter, through fraud or inadvertence, fails to schedule all his creditors. We cannot believe that the Legislature intended any such result, but rather that when the purchaser has properly required the seller to furnish him the list provided for under the prescribed oath, he may in good faith accept and act upon it as reflecting the truth. The affair it deals with is that of the seller, his business, and the responsibility for presenting the actual status of his indebtedness is put upon him by the requirement that he make the oath.
It further seems clear to us that when, in 1915 (Laws 1915, c. 114) the Legislature came to amend this statute and for the first time inserted in it the disjunctive provision, "and unless the purchaser or transferee shall at least 10 days before taking possession of such merchandise or merchandise and fixtures, or paying therefor, notify," etc., it meant to say that the required notice before paying for the property would be sufficient, irrespective of when the possession might be taken, and vice versa.
These conclusions require an affirmance of the trial court's judgment, our findings as to the facts having eliminated as immaterial the other questions discussed in the briefs of the parties.
Affirmed.