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Escalle v. Mark

December 31, 1919

PETER ESCALLE, RESPONDENT, V. FRANK MARK, ALSO KNOWN AS FRANK MARKS, APPELLANT.


Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.

Platt & Sanford, for Appellant.

Robert Richards, for Respondent.

By the Court, Coleman, C. J.:

This action was instituted by plaintiff, who is respondent here, to recover from the defendant (appellant) the balance of the purchase price of a one-half interest in and to a hotel and saloon business conducted by the plaintiff in Reno, and a like interest in the stock, fixtures, furnishings, furniture, and appurtenances thereof. Judgment was rendered in favor of the plaintiff, and from an order denying defendant's motion for a new trial, and the judgment, an appeal has been taken.

1-3. The only point urged upon our consideration as a reason why the judgment and order appealed from

[43 Nev. 172, Page 174]

should be reversed in that prior to the making of the sale section 2 of the “Bulk-Sales Act” (Stats. 1907, p. 209; Rev. Laws, 3909) was not complied with. That section reads:

“Whenever any person shall bargain for or purchase any portion of a stock of merchandise otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller's business, or an entire stock of merchandise in bulk, for cash or on credit, and shall pay any part of the price, or execute and deliver to the vendor thereof or to his order, or to any person for his use, any promissory note or other evidence of indebtedness, to give credit, whether or not evidenced by promissory note or other evidence of indebtedness, for said purchase price or any part thereof, without at least five days previously thereto having demanded and received from the said vendor or his agent the statement provided for in section 1 of this act, and verified as there provided, and without notifying also at least five days previously thereto, personally or by registered mail, every creditor as shown upon said verified statement when said proposed sale or transfer is to be made, and the time and conditions of payment, and without paying or seeing to it that the purchase money of said property is applied to the payment of bona-fide claims of the creditors of the vendor as shown upon said verified statement, share and share alike, such sale or transfer shall be fraudulent and void.”

Section 1 of the act provides:

“It shall be the duty of every person who shall bargain for or purchase any portion of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller's business, or an entire stock of merchandise in bulk, for cash or on credit, before paying to the vendor or his agent or representative, or delivering to the vendor or his agent or representative, any part of the purchase price thereof or any promissory note or evidence therefor, to demand of

[43 Nev. 172, Page 175]

and receive from such vendor or agent, or if the vendor or agent be a corporation, then from the president, vice-president, secretary, or managing agent of such corporation, a written statement, sworn to substantially as hereinafter provided, of the names and addresses of all the creditors of said vendor to whom said vendor may be indebted, together with the amount of the indebtedness due or owing or to become due or owning by said vendor, to each of the said creditors, and it shall be the duty of the said vendor or agent to furnish such statement, which shall be verified.”

To be more specific, it is contended that because of the failure of the defendant to demand and receive from the plaintiff, five days previous to the consummation of the sale, the sworn statement provided for in section 1 of the act in question, and give five days' notice of such proposed sale to the creditors of the vendor, the sale was and is absolutely null and void, and that for this reason the plaintiff cannot recover the unpaid amount of the purchase price.

It is true that the statute says that when there is a failure to comply with section 1 of the act the sale shall be “fraudulent and void”; but did the legislature mean that a sale should be absolutely “void” as between the parties, regardless of the fact that no creditor was prejudiced thereby? We think not. It is a cardinal rule of statutory construction that the legislative intent controls (Worthington v. District Court, 37 Nev. 212, 142 Pac. 230, L. R. A. 1916a, 696, Ann. Cas. 1916e, 1097), and in seeking the intention of the legislature in enacting a certain law we must ascertain the evils sought to be remedied. This court, speaking through Hawley, J., in Ex Parte Siebenhauer, 14 Nev. 365, said:

“The meaning of words used in a statute may be sought by examining the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it. The entire ...


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