{ "id": 5811775, "name": "John E. Traeger, Sheriff, for use of David Sachs, Appellee, v. National Surety Company and Mandel Weininger, Appellants", "name_abbreviation": "Traeger ex rel. Sachs v. National Surety Co.", "decision_date": "1918-10-01", "docket_number": "Gen. No. 24,180", "first_page": "267", "last_page": "270", "citations": [ { "type": "official", "cite": "212 Ill. App. 267" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Mich. 349", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1596799 ], "opinion_index": 0, "case_paths": [ "/mich/186/0349-01" ] }, { "cite": "37 Okla. 714", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8884073 ], "opinion_index": 0, "case_paths": [ "/okla/37/0714-01" ] }, { "cite": "127 Ga. 454", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 444290 ], "opinion_index": 0, "case_paths": [ "/ga/127/0454-01" ] }, { "cite": "193 Mass. 106", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3502984 ], "opinion_index": 0, "case_paths": [ "/mass/193/0106-01" ] }, { "cite": "99 Neb. 24", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4466789 ], "opinion_index": 0, "case_paths": [ "/neb/99/0024-01" ] } ], "analysis": { "cardinality": 414, "char_count": 6185, "ocr_confidence": 0.515, "pagerank": { "raw": 1.0553228045596638e-07, "percentile": 0.555200322489844 }, "sha256": "e7b4f1e751868bf084194b8a07b8071ef48daac519135e073e7d6117bf0cd4b1", "simhash": "1:b289b95408921951", "word_count": 1069 }, "last_updated": "2023-07-14T15:34:34.102394+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John E. Traeger, Sheriff, for use of David Sachs, Appellee, v. National Surety Company and Mandel Weininger, Appellants." ], "opinions": [ { "text": "Mr. Justice McSurely\ndelivered the opinion of the court.\nIn this suit, upon a replevin bond, plaintiff had judgment for $385.10,' which defendants ask to have reversed.\nThe facts seem to be that one Herman Breyer was the proprietor of a furnishing goods store in Chicago. Being in financial difficulties, on December 30, 1914, he executed a bill of sale to Jacob Katz and H. A. Pillman, two of his creditors, in and by which he \u201cgranted, sold, conveyed and assigned, and by these presents does grant, sell, convey and assign unto the said Jacob Katz and H. A. Pillman\u201d all his property and assets, including stocks of merchandise, store and office fixtures, etc. The instrument further provided that Katz and Pill-man should make a sale of the property and distribute the proceeds thereof among the creditors of Breyer, and that until the purpose of the agreement had been consummated Breyer was to retain his possession of the store at a salary. Subsequently the goods were sold under this agreement to Mandel Weininger, one of the defendants, for enough to pay twenty-five cents on the dollar to creditors of Breyer. After the creditors had been paid Weininger did not take over the goods or the business, btvfc Breyer continued in possession of the store and goods, with his name on the signs and on the boxes which held goods. It is argued that all this was merely a ruse by which Breyer planned to dispose of his creditors at twenty-five cents on the dollar and then continue to operate the business with the goods which the creditors had furnished and delivered to him.\nIn March, 1915, David Sachs, the beneficial plaintiff, brought suit against Breyer and two others on a promissory note, and obtained judgment for $233.42. An execution was sued out and levied upon the stock of goods in the store of which Breyer had possession. While the bailiff was in possession of these goods under Ms execution, Weininger sued out a writ of replevin in the Circuit Court, under wMch he took possession of the stock of goods. In the replevin suit the defendant National Surety Company was surety on Weininger\u2019s bond. Judgment by default was rendered against Weimnger in the replevin suit, and a writ of retorno habendo was issued, but the goods were not returned. Thereupon this suit upon the bond followed, and upon trial on the merits there was judgment against the defendants.\nCounsel for defendants claim that Weininger is protected because in the sale from Katz and Pillman to him the Bulk Sales Law in force in this State was complied with; and plaintiff replies that this cannot avail for the reason that the transfer from Breyer to Katz and Pillman was a transaction within the scope of the Bulk Sales Law and, concededly, that law was not complied with as regards that transaction.\nThe 1 \u2018Act to regulate the sale or transfer of goods, \u201d, etc., in force July 1, 1913 (Hurd\u2019s Ill. St. 1915-16, p. 2331) [Callaghan\u2019s 1916 St. Supp. \u00b6 10021(1) et seq.], provides that \u201cthe sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor\u2019s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor\u2019s business shall be fraudulent and void as against the creditors of the said vendor, unless\u201d certain conditions are observed. This language is squarely applicable to the transfer to Katz and Pillman. The words of conveyance in the bill of sale are complete and purport to sell and convey in bulk all of the stock of merchandise, otherwise than in the ordinary course of trade. No reason is suggested, and none occurs to us, why the Bulk Sales Law does not cover a transaction of this kind. We are referred to no decision in this State precisely in point, but in other jurisdictions, when the matter has been considered, the provisions of the Bulk Sales Law have been held to be applicable.\nIn Bailen v. E. P. Badger Import Co., 99 Neb. 24, after extended discussion and reference to decided cases, the court held that such a transfer for the benefit of creditors was within the requirements of the Bulk Sales Law. To the same effect are Gallus v. Elmer, 193 Mass. 106; Sampson v. Brandon Grocery Co., 127 Ga. 454; Humphrey v. Coquillard Wagon Works, 37 Okla. 714; Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349.\nFollowing the reasoning in these cases we are of the opinion that the Bulk Sales Law was intended to prevent a dealer disposing of his stock of merchandise outside of the usual course of business so that it should be taken away from his creditors in general, and that the assignment to Katz and Pillman was a sale within the scope of the statute. It follows, therefore, that the transfer to Weininger was void as against Sachs, a creditor holding Breyer\u2019s note.\nA suggestion is made of the allowance of an unreasonable amount for attorney\u2019s fees, but under the evidence adduced we are not prepared to say that the finding of the court was not justified.\nWe see no reason to disturb the judgment, and it is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice McSurely" } ], "attorneys": [ "N. J. Pritzker and Maxwell B. Herman, for appellants ; Douglas C. Gregg, of counsel.", "Fred H. Atwood, Charles O. Loucks and Vernon B. Loucks, for appellee; Frank N. Seed, of counsel." ], "corrections": "", "head_matter": "John E. Traeger, Sheriff, for use of David Sachs, Appellee, v. National Surety Company and Mandel Weininger, Appellants.\nGen. No. 24,180.\nFraudulent conveyances, \u00a7 15 \u2014what constitutes sale within Bulk Sales Act. An assignment by a merchant of his merchandise, fixtures, etc., to one to sell and distribute the proceeds among his creditors is a sale within the meaning of the Bulk Sales Act [Callaghan\u2019s 1916 St. Supp. \u00b6 10021(1) et seq.], and one to whom the assignee transfers such merchandise without complying with the act acquires no title as against a judgment creditor of the assignor.\nAppeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1918.\nAffirmed.\nOpinion filed October 1, 1918.\nRehearing denied October 14, 1918.\nN. J. Pritzker and Maxwell B. Herman, for appellants ; Douglas C. Gregg, of counsel.\nFred H. Atwood, Charles O. Loucks and Vernon B. Loucks, for appellee; Frank N. Seed, of counsel.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0267-01", "first_page_order": 299, "last_page_order": 302 }