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erty, and not to the property itself, for satisfaction of his debt.

The good faith of plaintiff is not assailed. Why may not he rely upon the fact that creditors of his vendor were not interested in the sale for the reason that they could not have reached the property in the hands of the vendor? Claiming that they answer this question, defendant refers us to Williams v. Brown, 137 Mich. 569 (100 N. W. 786), and McCausey v. Hoek, 159 Mich. 570 (124 N. W. 570, 18 Am. & Eng. Ann. Cas. 945). In the first-mentioned case the action was trover by the vendee of personal property against a sheriff for conversion of the property. The sheriff had seized the property on execution running against the vendors. No specific articles of the property were in any event exempt from execution, but only goods of a specified value, to be selected out of the larger quantity. The vendors, judgment debtors, were in possession of the property when it was seized. They did not select, or offer to select, any goods as exempt. The statute (3 Comp. Laws, § 10326) provides that, after the inventory and appraisal of goods seized on execution, the defendant in execution, or his authorized agent, may select from such inventory an, amount of such property not exceeding, according to such appraisal, the amount or value exempted by law from execution, but if neither the defendant nor his agent shall appear and make such selection, the officer shall make the same for him. It was held:

"The officer could not well know the conditions of the sale between his sons and the plaintiff, or the arrangement, if there was any, in regard to the exemptions. The plaintiff did know, and it was his duty, if he desired to claim exemptions by virtue of his purchase, to notify the officer and demand the right of selection. Where no duty of selection is imposed upon the officer, the debtor waives his right to the exemption if he fails to demand it. * Whether a fraudulent vendee is entitled to claim the exemption

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of his fraudulent vendor, where the property levied upon is in excess of the exemption, quære; but if he is, inasmuch as the statute imposes no duty upon the officer to make selection in such case, the vendee must notify the officer, or be held to waive his selection."

In McCausey v. Hoek, the rule of Williams v. Brown is followed; the court saying, in part:

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"Then the plaintiff claimed the property as her own. She did not claim it as exempt property sold to her. Upon this record the officer owed her no duty as to setting off exemptions, as she claimed none. The assignee succeeded to McCausey's rights to exemption, but it was necessary for her to assert them."

We do not find in these opinions, nor in the one delivered in Seitz v. Starks, 136 Mich. 90 (98 N. W. 852), any denial of the right of a vendee to acquire title to property exempt from levy and sale in the hands of the vendor. The sales were not claimed to be fraudulent and void because in contravention of the sales in bulk law. In the case at bar neither Nielski nor the plaintiff advised the officer that the property seized was claimed to be exempt from execution. But unless the provisions of the sales in bulk law apply to a sale of property, all of which is exempt from execution, plaintiff's title, so far as defendant is concerned, is invulnerable.

The terms of Act No. 223, Public Acts of 1905 (2 How Stat. [2d Ed.] § 2612 et seq.), embrace any sale of the whole, or a part, of a stock of merchandise and the fixtures pertaining to the business. The meaning of the term "fixtures" in the act has been somewhat restricted. Bowen v. Quigley, 165 Mich. 337 (130 N. W. 690, 34 L. R. A. [N. S.] 218); People's Sav. Bank v. Van Allsburg, 165 Mich. 524 (131 N. W. 101). But, independent of the character of some of the property as fixtures, the uniform rule of this court has been that creditors are not concerned with the

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disposition which a debtor makes of exempt property. Fischer v. McIntyre, 66 Mich. 681 (33 N. W. 762); Stewart v. Welton, 32 Mich. 56; Wilson v. Bartholomew, 45 Mich. 41 (7 N. W. 227); Anderson v. Odell, 51 Mich. 492 (16 N. W. 870); Buckley v. Wheeler, 52 Mich. 1 (17 N. W. 216); Emerson v. Bacon, 58 Mich. 526 (25 N. W. 503); Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380). See, also, Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111, 86 Am. St. Rep. 562). In Anderson v. Odell, Mr. Justice CAMPBELL, speaking for the court, said:

"So long as the statutory amount of exemption is not exceeded, there can be no appreciable reason why the property cannot be converted or exchanged. There is difficulty in understanding how a creditor . can first become entitled to reach his debtor's property the moment it ceases to be his property."

In Anderson v. Odell and in Cullen v. Harris, it is stated that the rule in the case of a sale of a homestead, and in the case of a sale of exempt personal property, is the same. It cannot be supposed that the legislature intended by Act No. 223, Public Acts of 1905, which contains neither a special nor a general repealing clause, to reverse, as to persons engaged in merchandising, the long-continued policy of the State with respect to exemptions. It is true that in J. L. Hudson Co. v. Hat Co., 174 Mich. 109 (140 N. W. 507), it was held, following the rule of Seitz v. Starks, that the purchaser of a stock of goods sold in contravention of this statute could not claim the benefit of the vendor's exemption when to secure the exemption a selection must be made from the mass of property sold, and when no such selection had been made or agreed upon at the time of the sale. The action, a proceeding in equity, was begun by the vendee to have determined the extent of its liability to creditors of the vendor, it being admitted that it was coextensive with the value of the goods purchased, less the seller's

exemption. It was held that the debtor, or his agent, should have made, or claimed, the exemption, and that his assignee could not exercise the right.

In the case at bar, it is to be inferred, and the contrary is not made to appear, that every article of property which entered into the sale which is attacked as void was exempt. In such a case, in my opinon, the provisions of the sales in bulk law do not invalidate the sale at the instance of creditors of the vendor.

It is not necessary to consider other questions. It follows from what has been said that the court was in error in directing a verdict for defendant, and ought to have directed one for the plaintiff.

The judgment is reversed, and a new trial granted. STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, and BIRD, JJ., concurred.

THOMASMA v. CARPENTER.

1. ACCOUNT STATED-DEFINITION-WORDS AND PHRASES.

An account stated is defined as an agreement between parties who have had business dealings that certain items of account arising out of their mutual transactions and the balance struck are correct, together with an express or implied promise of payment.1

2. SAME-BROKERS-ADMISSIONS-STATEMENT OF ACCOUNT.

In an action for commissions due to brokers under an

The authorities on the question what constitutes an account stated are gathered in a note in 27 L. R. A. 811. And as to the effect of statement of amount due on instrument for payment of money to sustain action as on stated account, see note in 24 L. R. A. (N. S.) 1237.

alleged special contract denied by defendant, the trial court erred in charging the jury that if they found plaintiff sent two or three statements of his claim at intervals of about a month, which were received by defendant and that the latter did not protest but allowed them to stand unquestioned, that fact might be treated as an admission of liability on defendant's part; since a claim for commissions due under a special agreement was in no sense an account stated, the fact of any contract or dealing at all being denied by defendant.

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A claim which is disputed in its entirety by defendant, should not be treated as an account stated when it did not arise out of mutual dealings or a balance struck and agreed upon: the rule that the receipt of statements sent at intervals, without protest, amounts to an admission of their correctness, applies only to an account stated.

Error to Kent; Brown, J. Submitted April 11, 1913. (Docket No. 54.) Decided May 28, 1913.

Assumpsit by Harry Thomasma against Richard E. Carpenter for services performed. Judgment for plaintiff. Defendant brings error. Reversed.

Hatch, McAllister & Raymond, for appellant.
John J. McKenna and Charles M. Owen, for appellee.

STONE, J. This is an action of assumpsit brought upon an express verbal contract alleged to have been entered into between the parties, on or about August 1, 1911. The plaintiff was the agent for the sale of a vacant factory building in Grand Rapids, known as the "Ocker & Ford property," and he was to receive from the trustees for the owners of the property, if he succeeded in making a sale, a commission of $1,000. The defendant was attempting to organize a corporation for the manufacture of Paris green and other products, and looked at the property with a view of having his proposed corporation buy it. Plaintiff was

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