Opinion
37471.
DECIDED JANUARY 20, 1959. REHEARING DENIED FEBRUARY 5, 1959.
Claim. Houston Superior Court. Before Judge Anderson. August 16, 1958.
George E. Saliba, Frank G. Wilson, for plaintiff in error.
Nunn Aultman, H. A. Aultman, contra.
The judgment of the trial court, who heard the case without the intervention of a jury, was demanded by the evidence, and no harmful error of law appearing, such judgment must be affirmed.
DECIDED JANUARY 20, 1959 — REHEARING DENIED FEBRUARY 5, 1959.
Alton Hardy and Allen P. Stone, trading as Hardy-Stone Pontiac Company, a partnership, sold certain described personalty to Robert F. McLeod and Durwood W. Tatom, a partnership trading as McLeod-Tatom Pontiac Company, on open account. Thereafter, Tatom sold his interest in the partnership business, including the items referred to above, to McLeod and executed an affidavit as to the outstanding debts of the partnership in connection with a purported compliance with the "Bulk Sales Act." Thereafter McLeod, who had purportedly purchased the interest of Tatom, sold the business to McLeod Motors, Inc., taking for consideration shares of stock in such corporation. No effort to comply with the "Bulk Sales Act" was made in connection with this latter sale. Thereafter the plaintiff partnership, Hardy-Stone Pontiac Company, filed a purchase-money attachment and McLeod Motors, Inc., filed a claim to the personalty levied on. The issue to be tried was thus made, and on the trial, the judge of the superior court, sitting without a jury, found for the plaintiff, after overruling the claimant's motion for a nonsuit, made at the conclusion of the plaintiff's evidence but not passed upon until after the trial of the case was completed. The judgment of the trial court was in part as follows: "(1) Claimant's motion for nonsuit, made at the conclusion of the evidence and considered in the light of the evidence at that point and of the stipulations of fact, is overruled and denied. (2) After presentation of evidence by both plaintiff and claimant, after hearing arguments of counsel for both parties, after a study of the briefs submitted, and after careful consideration of the issues involved, the Court finds the property described in the purchase-money attachment and as claimed by the claimant, subject to said purchase-money attachment. . ." It is to this judgment that the claimant excepts as well as to the admission of specified evidence over its objection.
1. "A sale by one partner of his interest in a mercantile business to his associates is not within the purview of the [Bulk Sales] Act." Taylor v. Folds, 2 Ga. App. 453 (1) ( 58 S.E. 683); Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359 ( 78 S.E. 1078). Therefore, the purported attempt to comply with the "Bulk Sales Act" (Code Ch. 28-2) was a useless gesture on the part of the members of the partnership when McLeod purchased Tatom's interest in such partnership, and McLeod obtained no greater interest in the partnership property than the partnership had before such sale took place. Such sale would not, even if executed in accordance with the Bulk Sales Act, prevent a creditor of the partnership from having such property levied on by purchase-money attachment had the sale to McLeod been the only sale which had taken place.
2. In view of the above, the next question presented is whether the transfer of the property from McLeod to the corporation was such a transfer as would prevent the levy of the purchase-money attachment from being lawfully made.
It was conceded on the trial of the case, when the attorney for the claimant testified from the stand, that the "bulk sale" from McLeod to the claimant corporation was not in compliance with the Bulk Sales Act. Accordingly, the transfer was void, and under such conditions the vendee, claimant, received no title as against the vendor's creditors. See Miller Co. v. Lunceford, 54 Ga. App. 21 ( 186 S.E. 766), and citations. The judgment for the plaintiff and against the claimant was demanded under all the evidence adduced on the trial of the case inasmuch as the sole issue was whether the claimant had title to the personalty so as to prevent the levy.
3. In view of what has been said above, the admission of certain evidence over the claimant's objection, which has not been considered by this court would not invalidate the judgment of the trial court who heard the case without the intervention of a jury.
4. The claimant contends that the trial court erred in denying its motion for a nonsuit, made at the conclusion of the plaintiff's evidence but not ruled upon until after all the evidence was in.
without considering whether the claimant should have insisted upon a ruling at the time the motion was made, and whether it should be passed upon in the light of all the evidence adduced on the trial of the case, the parties stipulated the following facts at the beginning of the trial: "1. The property levied on was originally sold to the defendants by the plaintiff on open account. 2. Subsequently thereto, in May, 1957, Tatom, who was a partner of McLeod, sold his entire interest in the partnership, including the property here in issue, to McLeod. 3. McLeod immediately or shortly thereafter sold all of the assets of the former partnership, including the property here in issue, to the claimant, a corporation. However, plaintiff contends that such sale was not a valid sale."
As has been observed in the second division of this opinion, the sale from McLeod to the corporation was one covered by the Bulk Sales Act, and where such a sale is made without complying with such act it is conclusively presumed to be fraudulent as to the vendor's creditors. Accordingly, where the stipulation was that the "bulk sale" was made and in the absence of evidence that the Bulk Sales Act was complied with, it cannot be said that the evidence at the time the plaintiff rested would not have supported a finding that title to the property was not in the defendant McLeod as to his creditors.
While the claimant, in its brief, argues that the plaintiff failed to prove the allegations of the purchase-money attachment, such contention is without merit in a controversy between the plaintiff and the claimant where the sole issue to be tried is that of title. See Southern Mining Co. v. Brown, 107 Ga. 264 ( 33 S.E. 73); Newsome Lumber Co. v. Ramsey Motor Co., 36 Ga. App. 194 ( 136 S.E. 166), and citations.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.