Opinion
No. 49/526.
03-29-1921
J. C. SMITH & WALLACE CO. v. GOLDNER et al.
Reed & Reynolds, of Newark, for the motion. Abraham Henig, of Newark, opposed.
Bill by J. C. Smith & Wallace Company against Nathan J. Goldner and another. On motion for preliminary injunction. Motion denied, with permission to amend bill.
Reed & Reynolds, of Newark, for the motion.
Abraham Henig, of Newark, opposed.
BACKES, V. C. The defendant Nathan Goldner sold his stock of merchandise, in bulk, to the defendant Isaacson. The purchaser failed to demand and receive a list, in writing, of the vendor's creditors, and to notify them of the proposed sale, as required by the Bulk Sales Act of 1915 (P. L. 377). The complainant recovered a judgmentagainst Goldner and levied on the merchandise, the subject of the sale, and also filed this bill to compel the defendants to discover the articles sold, the terms of sale, and the amount of purchase price remaining unpaid; that defendants be decreed to pay the judgment, and for an injunction to restrain the payment of the unpaid purchase price. The present motion is for a temporary injunction restraining the payment of the balance of the purchase price. The motion must be denied.
A sale in bulk is void as to creditors unless the provisions of the act are complied with, but this does not give creditors a claim upon the purchase price. The act implies that, the sale being void, creditors have a remedy at law and in equity; that is, as I take it, creditors may execute their judgment at law by a levy and sale of the goods, or, if unable to execute the judgment by a levy and sale, they may cause the writ to be returned nulla bona, and proceed in equity against the purchaser for the value of the goods, exactly as if the goods had been transferred without consideration, with intent to cheat and defraud creditors.
The bill may be amended to charge Isaacson, the purchaser, with the value of the goods.