Opinion
Docket No. 45.
Submitted June 8, 1927.
Decided October 3, 1927.
Error to Washtenaw; Sample (George W.), J. Submitted June 8, 1927. (Docket No. 45.) Decided October 3, 1927.
Case by Miles McPartin against Edgar B. Clarkson and others for the conversion of certain pool tables. Judgment for defendants on a directed verdict. Plaintiff brings error. Reversed.
A.J. Waters, for appellant.
F.M. Freeman and Carl A. Lehman, for appellees.
On February 1, 1924, Frank Cahill, conducting a pool room and cigar and candy stand, occupied a store building in Manchester, as a tenant of defendant Clarkson, and was delinquent for rent in the sum of $140. Clarkson sued out a writ of attachment which the sheriff, defendant Robison, levied on two of six pool tables. It is sufficient to say of this levy that the sheriff did not take actual possession of the two tables; his inventory and appraisal did not identify two particular tables; and they were left in the full possession of the defendant.
On December 11, 1925, the sheriff came back with an execution in the cause, and, aided by his deputy, defendant Lindbert, took thereon two of the tables and sold them. Plaintiff offered evidence to show that in the meantime and on May 16, 1924, he had bought from Cahill and had paid him value therefor, innocently and without knowledge or notice of the claimed attachment levy, all the tables, the stock of tobacco and candy and certain other personal property, including household goods, but the evidence, particularly the bill of sale, was excluded on the ground that the sale had been made without compliance with the bulk sales law (2 Comp. Laws 1915, § 6346 et seq.). Plaintiff's action is against the sheriff, his deputy, and the execution plaintiff, Clarkson. A verdict was directed for defendants, and plaintiff brings error.
The claimed attachment levy as stated and the leaving the tables in the apparently unrestricted possession of the defendant afforded no protection as against plaintiff, if he was, as he contends, an innocent purchaser. The duty of an officer with respect to levy is fully set forth in Quackenbush v. Henry, 42 Mich. 75. The bulk sales law relates to "a stock of merchandise or merchandise and the fixtures pertaining to the conducting of said business." "Merchandise" here means "such things as are usually bought and sold in trade by merchants." People's Savings Bank v. Van Allsburg, 165 Mich. 524 . "Fixtures" here means "such chattels as merchants usually possess and annex to the premises occupied by them to enable them the better to store, handle and display their goods and wares." Bowen v. Quigley, 165 Mich. 337 (34 L.R.A. [N. S.] 218). And see Hoja v. Motoc, 235 Mich. 258.
If Cahill's business had been limited to pool, he might have sold his tables without reference to the bulk sales law, as they would be neither merchandise nor fixtures within the meaning of the act. Did the fact that he also conducted in the pool room a tobacco and candy stand make the pool tables fixtures under the act? It did not. It may be that tobacco and candy are usually sold in the pool rooms. But pool tables are not such chattels as tobacco and candy merchants or either of them "usually possess and annex to the premises occupied by them to enable them the better to store, handle and display their goods and wares." The sale of the merchandise, tobacco and candy, may have been void as to creditors because of the bulk sales law, but the sale of the tables was not for that reason invalid.
Plaintiff should have been permitted to adduce evidence, including his bill of sale, that he purchased the tables as he claims. That the bill of sale might have been admissible on other grounds we are not called upon to discuss.
Decision of no other question is required.
Judgment reversed, with costs to plaintiff. New trial granted.
SHARPE, C.J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ., concurred.