Gallup v. Rhodes. taken possession of by such officer, "unless you believe and find from the evidence that plaintiff did retain and agree to hold and keep the property for defendant Rhodes as his agent and custodian, and not to hold it for herself as the vendee of of Russell." For the defendants the court instructed on the Bulk Sales and the attachment issues. At the conclusion of the argument the court gave an instruction to the effect that Russell was, before he sold to plaintiff, conducting such a business that if sold in bulk the sale would be within the provisions of the Bulk Sales Law. Defendants' brief is not such as complies with our rules, and plaintiff challenges it on that ground. We can, however, gather from the brief and the record the decisive points. Defendants make in effect four assignments: First, that there is no substantial evidence to support the verdict; second, that the court erred in the admission of evidence; third, that the court erred in giving instructions for plaintiff; and fourth, that the verdict is excessive. The first assignment proceeds on the theory that the sale from Russell to plaintiff was made without compliance with the Bulk Sales Law and was therefore void, and if void then plaintiff had no title and owned nothing, and regardless of the attachment being good or bad, defendants had the right under the execution to take and sell the property. If the sale was one that involved the Bulk Sales Law, and that law was not observed, then defendants had a right to proceed with the execution and take and sell the property, no question of limitation being involved. [Ward v. Stutzman, 195 Mo. App. 376, 191 S. W. 1090; Riley Penn. Oil Co. v. Symmonds, 195 Mo. App. 111, 190 S. W. 1038.] The statement, supra, that if the Bulk Sales Law applied to the sale in question the defendants here had a right to proceed with their execution regardless of the validity of the attachment is on the theory that plaintiff would be in no position to complain and not Gallup v. Rhodes. on the theory that the judgment rendered on constructive service would be a valid judgment where there was in fact no lawful seizure of the res. [Weidman v. Byrne,Mo. App. 226 S. W. 280.] There was considerable effort and evidence to show what Russell sold and how he conducted the business when he was in charge of the restaurant. There was evidence that Russell served meals, and cold drinks; kept some canned goods, apples, oranges, lemons, candies, chewing gum, cigars, crackers, bread, hams, etc., and sold some of these occasionally where the purchaser took the purchase away to his home. There is nothing in the record to show that plaintiff bought anything of consequence from Russell except the tables, chairs, etc., levied on and sold. Defendants in the abstract of plaintiff's evidence on cross-examination state that "plaintiff testified that she bought the whole of Clint Russell's goods and fixtures;" but nowhere does it appear what she bought except the fixtures. It is plain from this record that Russell was not conducting a merchandise business as that term is generally understood, and from this record it does not appear that plaintiff bought anything of consequence from Russell except the fixtures. In Breweries Company v. Lawton et al., 200 Mo. App. 238, 204 S. W. 730, we held that the sale of a billiard and pool hall business including tables, cues, racks and other usual equipment was not within the Bulk Sales Law. [Secs. 2286 et seq., R. S. 1919.] In that case Judge FARRINGTON speaking for the court said: "We hold that this law is applicable only to sales made by those carrying on a mercantile business-that is merchants who buy goods, wares and merchandise as a business for the purpose of reselling, and that the act is broad enough to cover the goods and all fixtures and equipment pertaining to the vendor's business which were incident to and used in connection with the sale of the goods." A number of cases are cited in Breweries Co. v. Lawton et al., supra, and among them is Peoples Savings Bank v. Van Allsburg, 165 Mich, Gallup v. Rhodes. 524, 131 N. W. 101, where it is held that the Bulk Sales Law did not apply to the sale of the furniture and utensils used in the operation of a restaurant where it was not shown that a merchandise business was conducted in connection therewith. In the present case no substantial showing in this respect was made. In Balter and Miller v. Crum et al., 199 Mo. App. 380, 203 S. W. 506, it was held that the Bulk Sales Law did not apply to the sale of the wagons, horses, harness, etc., of one whose business was that of owning and operating a livery and boarding stable. In the last cited case the court said: "The words 'stock of merchandise,' are here used in the common and ordinary acceptation of those terms and are intended to mean goods or chattels which a merchant has for sale such as is often referred to by the phrase 'stock in trade' and the words fixtures and equipment mean fixtures and equipment or either one, pertaining to the vendor's business of merchandising." We hold that the sale from Russell to plaintiff was not such sale as is contemplated by our Bulk Sales Law. The evidence claimed to have been erroneously admitted, concerned, so far as it is necessary to consider, the value of the soda fountain. A witness who had formerly owned the soda fountain was permitted over defendants' objection to testify that if the fountain was in good condition at the time defendant Rhodes took it from plaintiff that it was worth $400. He testified that it cost $1100 new as we understand, and that he gave $500 for it, and sold it with some other things for $200, but he said he sold it at a sacrifice. Plaintiff testified that the property taken from her was worth $1200. Another witness who conducted the sale for Russell when plaintiff bought testified that the property was reasonably worth from a $1000 to $1100. This witness also testified that plaintiff traded two houses (and presumably the lots) for the property she got from Russell, and that the property traded by plaintiff was worth $950. It is doubtful if the property taken from plaintiff could Gallup v. Rhodes. be said to have a market value. It was all second hand, and defendants made no attempt to show that the value placed upon the property by plaintiff and her witnesses was not reasonable. Where property has no general market value the best obtainable evidence as to its value is admissible. [Strothers v. McFarland, Mo. App. 194 S. W. 881.] We have examined all of defendants' complaints based on the admission of evidence and find no reversible error. This also disposes of the assignment that the verdict is excessive. The instructions especially those concerning the Bulk Sales Law were in effect a peremptory direction to find for defendants. Plaintiff did not claim that the Bulk Sales Law, if it applied, had been observed. The court instructed in effect that the business conducted by Russell was such that if sold the sale would be within the Bulk Sales Law. We find no error prejudicial to defendants in the instructions. A considerable portion of the record consists of evidence pertaining to the attachment. Plaintiff contending that the attachment was in law and in fact no attachment at all, while defendants contend that the constable properly attached the property. In view of our conclusion as to the Bulk Sales Law not being applicable to the sale involved here, it is not necessary to consider the attachment issue. We might say, however, that in view of the instruction the attachment issue is the only one that the jury could have considered; and that issue was found against defendants, and we think properly so. The judgment below should be affirmed, and it is so ordered. Cox, P. J., and Farrington, J., concur. INDEX. By JAMES P. AYLWARD. ACCIDENT. See Insurance. ACCIDENT INSURANCE. See Insurance. ACCOMODATION MAKER. See Bills and Notes, 6. ACCOUNT STATED. A letter written 1. Failure of Person not Original Party to Account to Deny or Dis- 2. Evidence: Insufficient to Establish. In an action on an account e 3. New Contract: Promise to pay: Elements. A stated account is 4. Trial Practice: Directed Verdict: Warranted Only Where Evi- 5. "Account Stated' is Account Settled Between Debtor and Credi- (701) |