concurring.
The dissent of Judges Fawcett and Sedgwick might be sfipported without doing any great violence to the principles of law applicable to the facts. The justice of the plaintiff’s claim has much to commend it. This is one of those cases where arguments may be found on either side. When Chambers & Company found themselves unable to meet their liabilities, they executed and delivered to one of *31their creditors, a corporation, O. Shenkberg Company, an instrument reciting the sale and conveyance of their stock of merchandise, and also their furniture and fixtures and all book accounts and bills receivable, together with other evidences of indebtedness. They undertook to create the corporation mentioned their agent, trustee, and attorney in fact to manage and continue the said business or to sell all the property conveyed. The purpose appears to have been that all creditors of the same class might receive the same treatment with reference to the payment of their debts. It was one of the considerations for the execution of the instrument made that said Chambers & Company be released from liability on any unpaid portion of the claims against them as to the claims of such creditors as accepted the trust deed and indicated acceptance thereof. Such of the creditors as accepted the trust deed Avere by the terms of the said instrument to execute a release on any unpaid portion of the claims filed AAdth the trustee. The corporation to which transfer was made took possession of the stock, sent letters to the creditors notifying them of the transfer, and including a blank form of acceptance and release. The E. P. Badger Import Company, one of the creditors, disregarded the communication and prosecuted an action, AAdiich it had already commenced, and obtained a judgment against Chambers & Company for the amount of its claim. The assignee sold the property at public sale August 8, 1912. The defendant, the E. P. Badger Import Company obtained its judgment for $399.10 and costs, and then issued an execution and placed it in the hands of the sheriff of Holt county. He levied the execution upon the goods sold as the property of Chambers & Company and took possession of the same, and then the plaintiff commenced this action and retook the merchandise under a writ of replevin. The court made findings and rendered a judgment in favor of the defendant, the E. P. Badger Import Company. The plaintiff appeals from this judgment.
*32It is claimed by tbe defendant that the plaintiff is not in position to question the judgment on appeal, for that in his motion for a new trial his only assignment was that the judgment was erroneous because it was contrary to law. The dissenting opinions contend that the office of a motion for a new trial is to give the trial court an opportunity to correct errors; that an assignment in the motion for a new trial alleging that the judgment is contrary to law may not challenge the attention of the court to the error relied upon, and so may give no opportunity to correct them; that such an assignment would not be sufficient to call the attention of the court to the sufficiency of the evidence to support the judgment. It is said in the majority opinion: “When, however, the record shows that there is no substantial conflict in the evidence, and that the sole question is whether upon the conceded facts the law will support the judgment, and that the court must have considered the sufficiency of the evidence in passing upon the motion for new trial, this court upon appeal should also consider that question and determine the case accordingly.” It is also said in the majority opinion that technical rules are not to be strictly enforced when it is manifest that their application would defeat justice rather than promote it. An authority is cited, and this view would seem to be correct.
It is further said in the majority opinion that the assignment constitutes a sale in bulk, and is void as to creditors, for the reason that it was made without compliance with the provisions of section 2651, Eev. St. 1913. The act in question provides for an inventory of the goods and a list of the creditors and the giving of notice to such creditors. The statute prohibits a disposition in bulk “otherwise than in the ordinary course of trade.” The appellant claims that in this state it is lawful for a debtor to prefer any one or more of his creditors; that in this case the assignment was made in good faith, with no intention of evading the provisions of the law; and that it is not in violation of the spirit of the law. It will be noticed that *33no creditor was entitled by the terms of the assignment to share in the proceeds of the the sale unless he accepted, or agreed to accept, a pro rata share in full of his demand. He was also required to release the individual members of the partnership from any liability for any balance.
It is said in the majority opinion that the statute in question was intended to prevent a trader from disposing of his stock of merchandise in a manner outside of his usual course of business. I do not think the bulk sales law is in any way applicable to this case. I do not think it is required that it should be considered. If the' property was sold and the defendant stood by while the trustee sold it and made no objection, it is in no condition to levy on the stock of goods for the satisfaction of his judgment, unless it in some way indicated that the arrangement made was not acceptable to it. If it did that, and executed no release, and did not indicate in any other way that it accepted the manner of settlement proposed, then it was at liberty to take its judgment and cause a levy to be made upon the property. It did that, and the property was taken away from the sheriff by a writ of replevin and by one who was a party to the execution of the transfer. As the defendant did not acquiesce in the arrangement made and did not release the debtors or agree to release them, it is not bound. The defendant could not be estopped, because it could not be bound unless it agreed to the contract made. When the defendant did nothing tending to show its consent to the agreement, it thereby indicated that it did not assent. Something affirmative was required of it before it could be bound.
The purchaser at the trustee’s sale could only take such title as his grantor had to give him. In this case the grantor had no title because of the infirmity of the proceedings and the failure of all of the creditors to come into the arrangement and join in the contract. The purchaser therefore is without title. He cannot claim to be an innocent purchaser. He knew that there was a defect in the title. *34He knew that lie was only getting such title as the trustee had to convey to him. It is therefore proper to affirm the judgment of the district court.