partnership; whereas, before the sale partnership creditors had to be paid before any individual creditors could reach the stock, and even then such relief by individual creditors could be had only by a bill in equity. Other reasons could be given in support of this posi tion, but it is unnecessary, as the language of the act is plain and unambiguous, and the complainant sold a half interest in a stock of merchandise otherwise than in the ordinary course of trade, which the act says renders the same fraudulent and void. In Ruling Case Law, par. 55, it is said: "The statutory test is whether the sale was made in the usual way in which a merchant owing debts conducts his business, or whether he takes an unusual method of disposing of his property in order to get the money for his own use, and leave his creditors unpaid." In Hannah v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 Am. St. Rep. 674, 12 Ann Cas. 344, the court said: "The terms, 'sale, transfer or assignment.' used in" such acts, "taken in their usual and ordinary signification, mean the disposition of the entire title of the seller." In the case we are considering the seller disposed of his entire interest in the stock of goods. Counsel for the defendant rely upon Taylor v. Folds, 2 Ga. App. 453, 58 S. E. 683, and Fairfield Shoe Co. v. Olds, 176 Ind. 526, 96 N. E. 592, in support of their position that a sale by one partner of his interest to his co-partner does not come within the statute. We have not had access to the former case; but, no doubt, it does sustain the defendant's contention, for the reason that the Supreme Court of Georgia, in Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359, 78 S. E. 1078, held that a sale of an interest in a stock of goods by a merchant for the purpose of taking such purchaser into partnership did not fall within the statute, which is in direct conflict with our holding in Thomas E. Daly v. Sumpter Drug Co., supra. The Georgia statute, however, is worded differently from ours. The Indiana case bases its holding solely upon the Georgia case. Other questions are raised by the assignments of error which it will not be necessary for us to pass upon in view of the fact that we have reached the conclusion that, for the reasons stated above, the complainant cannot get along in this suit. It results that the decree of the Court of Civil Appeals and of the Chancellor will be reversed, and the suit of the complainant will be dismissed, and he will be taxed with the costs accrued in the several courts. NOTE-Sale by Partner to Co-Partner as Coming Under Bulk Sales Statute.-The instant case seems to this annotator to be better ruled than are the opposing cases. The latter go upon the theory that, as the statute is in derogation of the common law, it ought not to be extended any further than the import thereof plainly requires. But this is evident regarding all such statutes, that it is intended when a sale is made in contravention of the requirements of the Bulk Sales Statute, that the joint and several liability of partners shall be for the benefit of their creditors and the resort of creditors to vendees is in the way of supplemental benefit to them. To have an element injected departing from the principle of joint and several liability, might be thought to introduce confusion in its application, and this is not to be. Now, why should a sale by one partner to another differ from a sale by any person to another person? The entire title the seller owns is transferred. Hanner v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 119 Am. St. R. 674, 12 L. R. A. (U. S.) 178, 12 Ann. Cas. 344. But there is some decision opposed to this view. Thus it was held in Washington State that the object of the Bulk Sales Statute "being to prevent the vendor, usually a retail merchant, from selling his stock of goods, pocketing the proceeds and leaving his creditors remediless," it cannot apply to other than retail sales. McAvoy v. Jennings, 44 Wash. 79, 87 Pac. 53; Kasper v. Spokane Merchants' Asso., 87 Wash. 447, 151 Pac. 800. Applying this principle, the Supreme Court of Washington held that the statute did not apply to transfer of a stock in trade to a corporation organized to take over the business. Maskell v. Alexander et al., 100 Wash. 16, 170 Pac. 350, L. R. A. 1918, c. 920. The premise seems very doubtful for the conclusion drawn. And so where in such a sale as in the last cited case the parties showed that they acted in good faith. Thorpe v. Pennock Mercantile Co., 99 Minn. 22, 108 N. W. 940, 9 Ann. Cas. 229, a distinction quite faulty, indeed, if good faith is not to excuse where there is a sale by a retail merchant to another. In New York it was held that the existence of fraud in fact would bring a sale within the purview of the act, where it was made to a corporation similarly constituted. West Shore Furniture Co. v. Murphy, 141 N. Y. Supp. 835. It is to be noted, too, that the case of Taylor v. Folds, 2 Ga. App. 453, 58 S. E. 683, has been abated from considerably in a case where the debtor sold a half interest to another and later the other half to the same person, as thus this would be to defeat the very purpose of the act and take away by indirection the reliance upon which creditors extended credit. Virginia-Carolina Chemical Co. v. Bouchelle, 12 Ga. App. 66!, 78 S. E. 51. In Marlow v. Ringer, 79 W. Va. 568, 91 S. E. 386, L. R. A. 1917D 619, there was a transfer by a retailer of a half interest to another, for the formation of a partnership, the new member agreeing to put in the store goods equal in valu to those then in stock. This came within the purview of the act and was void. It was said that the partnership never became effective as to the new purchaser, for "although an effort was made to distinguish between the groceries in the store at the time of the original transaction and those subsequently purchased and placed therein, that attempt was adjudged abortive. * * Besides, there was such commingling of the merchandise as to render the whole of it chargeable with the liabilities preferred against it." * HIGHER FEES FOR SOLICITORS. We notice in the English law journals an insistent demand by solicitors for an advance in the charges for legal services. The Solicitors Journal declares that the reform "must be considered in regard to the probable permanent fall in the value of money." The fees of solicitors are fixed by the Law Society. American lawyers will continue to charge all that the traffic will bear. There are no fee-fixing associations in America, except in the case of collection attorneys, who, it is reported, have already raised the fee for collection on first presentation from 10 per cent to 15 per cent. urged upon our brethren of the bar in America. This is also the position which was adopted by the American Bar Association at its last meeting in Boston in refusing to adopt the recommendation of a special committee to engage in an active propaganda against Socialism. It will be time enough for the bar to take an unequivocal position on any public question when, after full discussion, there is practical unanimity of professional opinion as to the inexpediency of any proposed change in the law, as in the case of its campaign against the recall of judges and judicial decisions. In such cases, and not otherwise, is its advice likely to be heeded. The next meeting of the Kansas Bar Association will be held at Topeka, January 30 and 31, 1920, in the Supreme Court Room. An outside speaker for the annual address has not yet been secured. The president's address will be given by Judge John C. Hogin of Belleville. A student of the State University Law School will speak on the subject "The Law Relating to Strikes." Mr. Leo T. Gibbens of Scott City will speak on "Law Courts in the Philippines." State Senator George W. Wark of Caney will deliver an address on "The Evolution of Property Rights." Mr. W. D. Vance of Belleville will speak on the subject "Courts of Today." Hon. Richard E. Bird of Belleville will address the meeting on "The Community, the Bar and the Bench." Mr. James A. Allen of Chanute has the subject "Non-Par Stock." Mr. J. C. Shearman of Wichita will speak on "Evidential Facts Contained in Disputed Documents." NATIONALIZATION OF ENGLISH MINES. The English bar is taking a great interest in the discussion now going on in England, as in America, over the question of the nationalization of coal mines. This is due to the fact, probably, that a Scotch solicitor, Mr. Roe Duncan, has been appointed Coal Controller for the United Kingdom. The English bar, while inclined to doubt the advisability of nationalization, declares its willingness through the Solicitors Journal to keep an open mind on the subject and from time to time "to point out the probable advantages and disadvantages of such a scheme." This is the position we have RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS. QUESTION No. 180. Collections; Fees; Relation to Other Attorneys; Relation to Client-Division of Fees With Attorneys Forwarding Collections; Proper Basis Indicated; Retention of Share of Fee by Forwarding Attorney Without Accounting to Client; Not Necessarily Improper.-1. An at torney in the course of litigation is required to engage the services of an out-of-town attorney. This out-of-town attorney in due course renders his bill for the services rendered, upon the prior understanding that the forwarding attorney is to receive the customary one-third of the fee. The client could not have procured the services to be rendered by an out-of-town attorney for a less price than the amount charged. Is the forwarding attorney entitled to retain for his own use the share of the fee he receives from his out-of-town corresponding attorney? 2. Under a similar arrangement for the payment of a share of the fee to a forwarding attorney, the latter attorney arranges with his client to conduct the entire litigation, including disbursements, for a fixed amount. In the latter case, would he ethically be entitled to retain the share of the fee which he receives from his out-of-town corresponding attorney and not account for it to the client? ANSWER NO. 180. 1. The Committee reaffirms its opinion that division of fees between attorneys "should be based upon a sharing of professional responsibility or of legal services, and that no such division should be made except with a member of the legal profession associated in the employment as a lawyer. Any other division would appear to be a mere payment for securing professional employment, which is to be condemned." (Question 42.) All division of fees between attorneys is by agreement, expressed or implied, but as to whether a one-third-two-thirds division is customary outside of the collection business, the Committee expresses no opinion. It is assumed that as the out-of-town attorney was retained in the "course of litigation," the forwarding attorney shared in the professional responsibility, if not in the actual legal services Upon the above assumptions, in the opinion of the Committee, the receipt of a share of the fee by the forwarding attorney is justifiable as a compensation for services and it may properly be retained by the forwarding attorney for his own use. The client, however, should be advised of the fact that his attorney received part of the fee of the out-oftown attorney. 2. Assuming, as the Committee does, that the client was not over-reached or deceived in fixing the agreed amount, it is not of the opin ion that the forwarding attorney owes an accounting to his client; but if the arrangement with the client is of a nature which, for his proper enlightenment or to enable him to make a fair contract with his lawyer, requires a disclosure of the actual disbursements, of course, the client should not be deceived or misled by concealment of the division. The Committee does not understand the question to imply that the forwarding attorney agrees at all events himself to pay the disbursements. QUESTION No. 183.. Infant; Employment; Compensation; Rela tion to Client; Relation to Court-Acceptance of Employment at Expense of One Adversely Interested to Act as Attorney in Behalf of Infant to Secure Authority for Settlement and Release of Infant's Claim for Personal Injuries.—A defendant covered by insurance injures an infant plaintiff through the negligent operation of his automobile. The insurance company adjustors immediately make overtures to the infant's parents for settlement, and an amount is agreed upon satisfactory to the parents and the company. Thereupon, the insurance company procures an attorney, not connected with its legal staff but on friendly terms with it, to prepare a petition and order appointing one of the infant's parents guardian ad litem for the proposed infant plaintiff. This the outside attorney takes or sends to the parents of the injured infant for execution. The petition is presented and upon motion of the outside lawyer as attorney for the petitioner, an order appointing the parent guardian ad litem is entered. Next, by arrangement, the attorney for the guardian ad litem delivers a summons to the regular attorney for the insurance company, who defends the action on behalf of the assured, and this attorney gives a notice of appearance in the action. As soon as the summons and notice of appearance are filed in court and the action is at issue, the outside attorney for the guardian ad litem prepares a petition for leave to compromise the action for the amount of the agreed settlement. An order granting leave to the guardian ad litem is then entered authorizing the guardian ad litem to receive the amount of the settlement upon his executing a bond in the required sum. The fee for this bond is paid by the insurance company. After the money is paid over, and a general release taken from the guardian ad litem, the action is discontinued. In the opinion of your committee, is such conduct on the part of the outside attorney, whose fee is paid by the insurance company, proper? ANSWER No. 183. It does not affirmatively appear by the question that the "outside attorney" makes full disclosure to the Court of his connection with the insurance company. Assuming that there is no such disclosure, the Committee is of opinion that the conduct on the part of the "outside attorney" is highly improper and unprofessional, because in appearing as attorney of record for the plaintiff he represents to the Court that he owes an undivided duty to the infant, whereas in fact he is employed, and is to be paid, by a company whose interest is adverse to that of the infant. (See Matter of Reifschneider, 60 App. Div., 478, Second Department.) And even if the "outside attorney" does make full disclosure to the Court, still in the opinion of the Committee the practice is not to be commended. The interests of the infant should be represented by independent counsel not biased by such method of employment, whose representation of the infant before the Court should be based upon his independent and unbiased judgment. (See Questions and Answers Nos. 25 and 171.) CORRESPONDENCE. THE PROGRESS OF UNIFORM LAWS. Editor Central Law Journal: In the December 5th issue of the Journal is an article by James M. Kerr on uniform legisla tion. On pages 409 and 410 he gives a list of the states adopting the various acts. This com pilation was apparently made from an old table and does not show the correct number of adoptions at the present date. I am enclosing herewith a correct list which I hope can appear in the Journal. The variation in the figures is considerable. In all but one instance the number of adoptions which Mr. Kerr states is too small. He also states on page 410 that Texas has not adopted the Negotiable Instruments Act. The act was adopted in that jurisdiction in 1919. Very truly yours, E. A. GILMORE. Madison, Wis. NOTE-We are very glad to receive from Mr. Gilmore, who is Secretary of the Conference of Commissioners on Uniform State Laws, the correction he notes with respect to Mr. Kerr's article in 89 Cent. L. J. 409. For the information of our readers we give below a list of all the laws prepared by the Conference, and the states in which such uniform laws have been adopted. -Ed. STATES WHICH HAVE ADOPTED UNIFORM LAWS. Domestic Acknowledgments Act-Iowa, Massachusetts, Michigan, Montana, New Mexico, North Dakota, Tennessee, Alaska, Minnesota; total, 9. Execution of Wills Act-Kansas, Maryland, Michigan, Nevada, Utah, Alaska; total, 6. Probate of Foreign Wills Act-Massachusetts, Michigan, New York, Utah, Wisconsin, Alaska, Washington; total, 7. Promissory Notes, Checks, Drafts and Bills of Exchange (Days of Grace)—Indiana, Iowa, Maine, Philippine Islands; total, 4. Negotiable Instruments Act-Adopted in all jurisdictions except Georgia and Porto Rico; total, 51. Migratory Divorce Act-Wisconsin. Divorce Procedure Act-Delaware, Wisconsin; total, 2. Sales Act-Arizona, Connecticut, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Wisconsin, Wyoming, Alaska; total, 23. Warehouse Receipts Act-Adopted in all jurisdictions except Arizona, Georgia, Indiana, Kentucky, Mississippi, New Hampshire, Oklahoma, South Carolina, Hawaii; total, 41. Annulment of Marriage and Divorce ActDelaware, New Jersey, Wisconsin; total, 3. Bills of Lading Act-California, Connecticut, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New York, North Caro Partnership Act-Idaho, Illinois, Maryland, Michigan, New Jersey, New York, Pennsylvania, Tennessee, Wisconsin, Wyoming, Alaska; total, 11. Cold Storage Act-Illinois, Maryland, Massachusetts, Tennessee, Utah, Wisconsin; total, 6. Workmen's Compensation Act-Idaho, Indiana, Minnesota, Oregon; total, 4. Foreign Probated Wills Act-Illinois, Louisiana, Nevada, Wisconsin; total, 4. Land Registration Act-Georgia, Utah, Virginia; total, 3. Limited Partnership Act-Idaho, Illinois, Iowa, Maryland, Minnesota, New Jersey, Pennsylvania, Tennessee, Wisconsin, Alaska; total, 10. Act for the Extradition of Persons of Unsound Mind-Illinois, Louisiana, Maryland, Massachusetts, Nevada, Tennessee, Wisconsin; total, 7. Flag Law-Arizona, Louisiana, Maine, Maryland, Washington, Wisconsin; total, 6. Fraudulent Conveyance Act-Arizona, Delaware, Michigan, New Hampshire, New Jersey, South Dakota, Tennessee, Wisconsin; total, 8. Conditional Sales Act-Arizona, Delaware, New Jersey, South Dakota, Wisconsin, Alaska; total, 6. HUMOR OF THE LAW. The latest bit of levity to go the rounds of the lawyers refers to an experience of which Attorney Arthur C. Thomsen was the beneficiary on Wednesday. Mr. Thomsen held a judgment of $9.50 of long standing against an Italian, to whom he wrote that if the money was not paid he would get the Italian's goat. The Italian's wife walked into Mr. Thomsen's office with the money, explaining that the family goat supplied the children with milk and that its loss would be a serious blow. Mr. Thomsen did not know that his debtor owned a goat.-Docket. One of our Oregon subscribers, Hon. D. C. Lewis, recently spent the morning in an inspection of the State Penitentiary at Salem. Mr. Lewis became interested in one of the prisoners, a young man of cheery disposition, good manners and apparent intelligence. "Young man," advised Lewis, after picking up a conversation with him, "as soon as you get out of here the best thing you can do is to settle down, go to work and get hold of a piece of property." "Shucks, that's what I'm in for," was the retort. When looking at men of renown The lordly financial elect, If we still would feel reverent thrills for the shrewdness and sense of these excellent gents, If we knew what they had in their wills! -St. Louis Post-Dispatch. "Why did you turn out for that truck? According to the traffic rules, you had the right of way." "Yes," answered Mr. Chuggins, patiently, "but the truck had the right of weight."-Washington Star. Uncle Rastus, testifying in a certain lawsuit, refused to be sworn. "Ah will affirm," he said. "But, Uncle Rastus," said the judge, "how is this? Last week, in the Calhoun case, you swore readily enough." "Yo' honah," said Uncle Rastus solemnly, "Ah was mo' suah o' mah facks in dat case dan in dis one."-Minneapolis Journal. |