The appellant, Calhoun Drug Company, petitioners for a rehearing, contending that, in affirming the judgment of the Circuit Court, this Court overlooked its contention that the statute denounces as unlawful, unless its terms are complied with, the sale of any merchant, etc., of his "stock of merchandise;" that those words are not sufficiently comprehensive to include "store fixtures" sold with the stock of merchandise; that in this case the price of the "stock of merchandise" was $1,819.31, and that of the "fixtures" was $2,018.76, making a total of $3,838.07; that $3,538.07 of the total purchase price had already been paid to other creditors of the seller, leaving in the hands of the purchaser only about $300, and that, besides, plaintiff's claim, there are still others unpaid, amounting to about $161; that, upon these figures, if only the price of the "stock of merchandise" is available to pay creditors, "as contended by the petitioners," then plaintiff'spro rata would be only 46 per cent., but if the total purchase price is to be taken into account, then it would be only about 87 per cent.; and, therefore, the Court erred in giving plaintiff judgment against the Calhoun Drug Company for the full amount of its claim.
We are not called upon in this case to decide whether the words "stock of merchandise" are sufficiently comprehensive, or were intended by the legislature (in view of the general purpose of the statute and the evils which it was designed to prevent and remedy) to include the store furniture and fixtures of a merchant who sells them along with his "stock of merchandise," with the intention of closing out and ceasing to carry on his business, because both parties to the transaction have considered the total purchase price, which was to be paid by the purchaser for the "stock of merchandise" and the "fixtures" as a single fund applicable to the payment of the claims of all the creditors of the seller, *Page 344 and the petitioner's statement shows that all of the fund (except about $300) has been so applied.
Moreover, petitioner's contention erroneously assumes that the creditors must be satisfied with the price agreed upon by the seller and purchaser. One purpose of the statute in requiring the inventory and schedule of creditors and notice of the proposed sale to be given to each creditor was to give the creditors opportunity to ascertain whether the price and terms of payment were fair and reasonable, and, if not, to take such steps as they might be advised to protect their interests, and the record shows that the sale was made at a discount of 25 per cent. from the market price.
When the parties to the sale fail to comply with its provisions, the statute imposes upon the purchaser liability to the creditors of the sellers in the following language:
"The merchandise in the hands of the purchaser, or any part thereof, if it shall be found in his or its hands, shall be liable to such creditors, and in the event the same, or any part thereof, shall be withdrawn by said purchaser, then the purchaser himself or itself personally shall also be liable to said creditors of such seller to the extent of the value of the merchandise so received by him or it and thus withdrawn."
It will be seen from the language quoted that the creditors are not relegated to the purchase price alone, as the petitioner erroneously assumes, for that may have been paid to the seller and disposed off; but they may also follow the goods in the hands of the purchaser, and, if he had disposed of them, the statute makes him personally liable to the creditors to the extent of the value of the goods so received by him and disposed of. As the testimony showed that petitioner had received and disposed of more than enough goods in value to pay plaintiff's claim, the Court properly directed a verdict against the petitioner, as well as the original debtor, for the full amount of the claim.
For the reasons stated, the petition is dismissed. *Page 345
MR. CHIEF JUSTICE GARY. I concur in dismissing the petition on the ground that no material question of law or of fact was either overlooked or disregarded.