veyances-Bulk Sales Law are usually bought Fraudulent con- and sold in trade by merchants." Peo"merchandise." ple's Sav. Bank v. Van Allsburg, 165 Mich. 524, 131 N. W. 101. "Fixtures" here means "such chattels as merchants usually possess and annex -"fixtures." 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, 130 N. W. 690. And see Hoja v. Motoc, 235 Mich. 258, 209 N. W. 66. 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 -pool tables as within statute. neither merchandise nor fixtures within the meaning of the act. Did the fact that he also con -effect of side ducted in the pool room a tobacco and candy stand make the pool tables line of candy fixtures under the and tobacco. 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 -partial in effect. because of the Bulk validity of saleSales 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, Ch. J., and Bird, Snow, Flannigan, Fellows, Wiest, and McDonald, JJ., concur. ANNOTATION. Applicability of Bulk Sales Act to hotel, restaurant, boarding house, saloon, pool hall, or livery stable. [Fraudulent Conveyances, § 8.] Bulk Statute, and that a sale thereof without a compliance with the provisions of that act was not invalid. II. Restaurant or boarding house. (Supplementing annotation in 7 A.L.R. 1587.) The recent decisions apparently have settled the question as to the applicability of the Bulk Sales Statutes to restaurants. Thus, in Farmers' & D. Nat. Bank v. Hannaman (1924) 115 Kan. 370, 223 Pac. 478, the court, in holding that a Bulk Sales Act was not applicable to the goods and fixtures used in a restaurant, said: "Do the provisions of the statute relate to and cover the restaurant business? We think not. While the restauranteur buys merchandise and resells same, ordinarily, it is not sold in the same form as when purchased. He buys foodstuff, and converts it into edible dishes which are sold. The statute covers only a stock of merchandise and fixtures pertaining thereto." And in Carnaggio Bros. v. Greenwood (1926) 142 Miss. 885, 108 So. 141, wherein it appeared that there had been a sale of restaurant fixtures and equipment, it was held that a restaurant was not a mercantile business within the meaning of the Bulk Sales Statute. So, a Bulk Sales Law has been held to be inapplicable to a transaction involving the sale of fixtures used in a restaurant, and a small amount of cigars and tobacco held for sale therein. Bolanovich v. Peter Hauptmann Tobacco Co. (1924) Mo. App. 261 S. W. 723. The sale of restaurant fixtures, such as tables, chairs, counters, stoves, ice boxes, a soda fountain, etc., is not one within the contemplation of the Bulk Sales Law. Gallup v. Rhodes (1921) 207 Mo. App. 692, 230 S. W. 664. See also Fisk Rubber Co. v. Hinson Auto Co. (1925) 168 Ark. 418, 270 S. W. 605; Re Henningsen (1923; D. C.) 291 Fed. 684, affirmed in (1924; C. C. A. 2d) 297 Fed. 821. Bulk sales statutes are not intended generally to restrict the sale in bulk of articles used by the seller in car rying on his trade or business, and which are necessary to enable him to enjoy the fruits of his own labor. A sale involving the transfer of equip ment used in a soft drink and lunch business is not within the statute. Missos v. Spyros (1924) 182 Wis. 631, 197 N. W. 196. A keeper of a restaurant whose business it is to serve food and drink to the public is not engaged in the mercantile or merchandising business, nor is he a merchant within the meaning of the Bulk Sales Law. The fact that he keeps some merchandise which is useful in his business, including cigars and cold drinks, does not alter the character of his business. D. C. Goff Co. v. First State Bank (1927) — Ark., 298 S. W. 884. III. Saloon. No later decisions he in. For earlier cases, see annotation in 7 A.L.R. 1588. IV. Pool hall. (Supplementing annotation in 7 A.L.R. 1589.) In the reported case (MCPARTIN V. CLARKSON, ante, 1535) it appears that there was a sale of pool tables and a stock of tobacco and candy by the proprietor of a pool room. The court holds that, although the sale of the tobacco and candy may have been void as to creditors because of the Bulk Sales Law, yet the sale of the pool tables was not invalid by reason thereof. V. Livery stable. (Supplementing annotation in 7 A.L.R. 1589.) Although the case of Fisk Rubber Co. v. Hinson Auto Co. (1925) 168 Ark. 418, 270 S. W. 605, is not directly within the scope of this annotation, attention is directed thereto by way of analogy. It appeared therein that there had been a sale of a business which was primarily an automobile repair shop. Accessories and parts ordinarily kept in stock for use in connection with repairs made in the garage were included in the sale. The court, in holding that the transaction was not within the Bulk Sales Law, said: "Here there was a sale of the entire business, but we think the court was warranted in finding that the Reliable Auto Company did not carry a stock of merchandise, within the meaning of the Bulk Sales Law, and that the principal business of that company was repair work, and that such supplies as it carried were carried as an incident to that business, and such sales as were made constituted an inconsequential part of the principal business." J. Q. L. COMBINED INDEX OF NOTES AND CASES ABANDONMENT. Extradition of one charged with desertion Infants, see INFANTS. Wife, see HUSBAND AND WIFE. ABATEMENT AND REVIVAL. Recovery by widow on theory of survival ABSOLUTELY. Definition of, see WORDS AND PHRASES. ABUSIVE LANGUAGE. Peace bond, abusive language as breach ABUTTING OWNERS. Liability of, to municipality for injury NITY. ACCELERATION. Of maturity of mortgage by failure to ACCIDENT INSURANCE See INSURANCE. Nature or form of remedics. Civil nature of contempt for violation of Criminal feature of proceeding for con- Criminal nature of petition for attach- Right of persons injured by violation of contract or tort. Towage, nature of action between parties ACTION OR SUIT. Injunction suit, see INJUNCTION. ACT OF GOD. See WORDS AND PHRASES. The dash in each citation stands for A.L.R. 1541 |