Argued on the merits September 7; affirmed September 21, 1937 ON THE MERITS (71 P.2d 583) In Banc. Lee H. Witty, garnishee, having made an unsatisfactory return upon notice of garnishment served upon him pursuant to a writ of execution issued upon the judgment rendered herein August 9, 1933, in favor of plaintiff and against defendant in the sum of $9,034.32 damages, and $2,000 attorneys' fees together with interest thereon at the rate of 6 per cent, from date of judgment and $24 costs and disbursements, allegations and interrogatories were served upon said garnishee. Said allegations were in part to the effect that defendant had sold to said garnishee a stock of *Page 275 goods and merchandise; that said garnishee, as the purchaser of said stock of goods, failed to comply with the Bulk Sales Law (Sections 64-101 and 64-102, Oregon Code 1930), in that he had not demanded or received from defendant a list of creditors of said defendant together with the amounts of their respective claims and had not notified plaintiff or caused plaintiff to be notified of said sale. It appears in plaintiff's brief that the sale of said stock of goods by defendant to said garnishee was consummated early in 1931, which, it will be noted, was more than two years before plaintiff's judgment was rendered.
To the said allegations, said garnishee filed a motion to strike those parts thereof dealing with the portion of plaintiff's judgment based upon damages accruing by reason of defendant's failure to perform a certain contract whereby defendant leased certain neon electric signs at a monthly rental of $17.50 each. Plaintiff had terminated and canceled said contract because of defendant's default in payment of said monthly rental at a time when there had accrued as such rental for the months of November and December, 1930, and January, 1931, the sum of $472.
Plaintiff interposed a motion for judgment on the pleadings against said garnishee in the full sum of plaintiff's said judgment against defendant including both said accrued rental and said damages. From an order sustaining said garnishee's motion to strike parts of said allegations and rendering judgment in favor of plaintiff and against said garnishee for said accrued rental in the sum of $472, plaintiff prosecutes this appeal.
The crucial question here is whether a party holding an unliquidated claim is a creditor within the meaning of the Bulk Sales Law. The trial court held that *Page 276 plaintiff was a creditor within the meaning of said law only to the extent that plaintiff's claim against defendant was liquidated when the transfer of said stock of goods was made by defendant to said garnishee.
On a former hearing of the original case between plaintiff and defendant, this court held that the provision was unenforceable in said contract between plaintiff and defendant to the effect that in case of default or breach of any of its terms, plaintiff might cancel the contract and recover 90 per cent of all sums to become due thereon as liquidated damages: Electrical ProductsCorporation v. Ziegler Drug Stores, Inc., 141 Or. 117, 120, 125 (10 P.2d 910, 15 P.2d 1078).
Plaintiff relies strongly upon the case of Fischer v. Rio TireCo. (Tex.) 65 S.W.2d 751. In that case, the sale of the stock of merchandise was made on March 11, 1929. One Segall sold said stock to the defendant Rio Tire Company. The Spectralite, Inc., was plaintiff. Fischer and others were interveners. Plaintiff's amended pleadings alleged that its debt due by Segall was by virtue of a contract, in which Segall promised to pay the plaintiff certain rentals on an electric lighted sign and there was a balance due of $5,600, and that Segall agreed to pay three-fourths thereof amounting to $4,200; that in December, 1928, plaintiff filed a suit against Segall and recovered a final judgment against him in the sum of $4,700, together with interest and court costs.
The Texas court made an order that judgment should be entered in favor of plaintiff, Spectralite, Inc., for the sum of $4,700 with interest thereon at the rate of 6 per cent per annum from November 1, 1928, and costs incurred. In that case, the trial court found that on March 11, 1929, and prior thereto, Segall was *Page 277 indebted to the Spectralite, Inc., in the sum of $4,700, with interest thereon at 6 per cent per annum from and after November 1, 1928. There is no suggestion in the opinion that at the time of the transfer of the stock of goods by Segall to the Rio Tire Company, namely, on March 11, 1929, the claim of Spectralite, Inc., was unliquidated. In other words, the question confronting us in the case at bar was not discussed by the Texas court in the case mentioned.
Hartwig v. Rushing, 93 Or. 6 (182 P. 177), is also urged by plaintiff as an authority in conflict with the holding of the trial court. There, the claim was evidenced by a promissory note for money loaned. A debt is liquidated when it is certain how much is owing. Obviously, in Hartwig v. Rushing, supra, the claim considered was not unliquidated.
Plaintiff calls attention to the failure of the garnishee to distinguish an Indiana case, cited by plaintiff, from the instant case. The Indiana case mentioned is Wright v. Haley,208 Ind. 46 (194 N.E. 637). The obvious distinction is that in the Indiana case the lessor had not terminated and canceled the lease and prosecuted his claim for damages for its breach. The terms of the lease rendered certain the amount of the lessor's claim. In the case at bar, as to the portion of the claim in dispute, the amount thereof did not become certain until final judgment had been rendered.
The only cases in point, to which our attention has been called, support the judgment of the learned trial judge. We think no error was committed in following the doctrine of those cases. They are cited in 84 A.L.R. at page 1413 and 102 A.L.R. at page 567. They are Griffin v. Allis-Chalmers Mfg. Co., 65 N.D. 379 (259 N.W. 89); Superior Plating Works v. Art Metal Crafts Co.,218 Ill. App. 148; Stony Island Trust Savings *Page 278 Bank v. Stony Island State Savings Bank, 240 Ill. App. 195;Harry B. Smead Co. v. J. Oliver Johnson, 262 Ill. App. 385.
The Stony Island case above cited deals with a claim based upon tort.
Besides the foregoing authorities, the cases of Apex LeasingCo., Inc., v. Litke, 173 A.D. 323 (159 N.Y.S. 707), andAdams-Flannigan Co. v. Di Donato, 180 A.D. 342 (167 N.Y.S. 948), affirmed, 228 N.Y. 542 (126 N.E. 898), are closely analogous.
We quote from the opinion in Griffin v. Allis-ChalmersManufacturing Co., supra:
"Did the Legislative Assembly, in speaking of a `creditor' or `creditors' of the seller, transferrer, or assignor of a stock of merchandise have in mind a creditor as defined by section 7216 supra? In short, did the Legislative Assembly intend that every creditor, as defined by section 7216, supra, should be a creditor within the purview of the Bulk Sales Law; or did it intend that the term `creditor' should have a more limited meaning? A creditor as defined by section 7216, supra, includes every person `in whose favor an obligation exists by reason of which he is or may become entitled to the payment of money.' A creditor as thus defined includes the holder of a claim for a possible contingent liability, or the holder of an unliquidated claim, and without regard to whether the claim arises in tort or in contract. It includes every possible claim that may be discharged by the payment of money and that may be made the basis of a judgment for money. A majority of the court are of the opinion that the very language of the Bulk Sales Act negatives any intention that the act should apply to the holders of a contingent or unliquidated claim, because it provides that the seller, transferrer or assignor shall prepare `a written list of names and addresses of the creditors of the seller, transferrer and assignor with the amount of indebtedness due or owing each and certified by the seller, transferrer and assignor under oath to be a full, accurate *Page 279 and complete list of his creditors and of his indebtedness.' This language clearly indicates that the claims required to be listed must be liquidated claims, and that it was not intended that all possible contingent and unliquidated claims should be listed. In short, the court is of the opinion that the provisions of the Bulk Sales Law do not apply to an uncertain, unliquidated or contingent claim arising either in tort or in contract."
As to the character and content of the statement required, the Oregon statute is very similar to that of North Dakota above quoted.
We quote the clause of the Oregon statute prescribing the character of the statement required:
"* * * A written statement under oath containing the names and addresses of all of the creditors of said vendor, together with the amount of indebtedness due or owing, or to become due or owing, by said vendor to each of such creditors." Section 64-101, Oregon Code 1930.
For these reasons, the judgment of the circuit court is affirmed.
BAILEY and LUSK, JJ., did not participate in this opinion. *Page 280