L. Simon & Co. v. W. J. McDonald, 85 Tex. 237

STAYTON, Chief Justice. This is an agreed case, in which the. only question involved is, whether a mortgage of a stock of goods by David Klipper to W. J. McDonald, with power to sell and apply the proceeds-to the payment of the claims of named creditors, is invalid by reason of the following paragraph in the instrument: “ The said W. J.

McDonald is to proceed at once, after taking invoice-thereof, to sell said goods and property for cash, either at wholesale, retail, or in job lots, and in either or all of said ways, so as to realize the money therefor in the speediest way consistent with the interests of all concerned.” The views of counsel for appellants are set forth in the following proposition inserted in the brief: “ Under the provisions of the written instrument shown by the record in this case, the trustee, W. J.

McDonald (to whom the property described in said instrument was transferred), was empowered to and could sell such property only at private sale, in the regular course of mercantile business.

Such restrictions and limitations upon the power of the trustee to sell postpone the execution of the trust for an indefinite time, hinder and delay Klipper’s creditors in the collection of their debts, and render the instrument void as to such creditors.” It seems to us that the paragraph of the instrument above quoted confers on the trustee the most ample power to sell either at public or private sale, and in quantities large or small, with a view to an early realization of a fair price for the goods. There is nothing to indicate an intention to restrict the trustee to private sales.

Goods may be sold at “ wholesale,” either by private or pub-lie sale, whether we give to that word its more general or restrictive meaning; and so may they be sold at “ retail,” which means in small quantities as well as to consumers So may they be sold in “ job lots,” by which we understand to have been meant parcels of goods such as are bought from wholesale dealers to sell to retailers. We do not well see how the power could have been made more ample as to the mode or urgent as to the speedy completion of sale.

He was directed to “ proceed at once” and to realize “ in the speediest way consistent with the interests of all concerned,” and to sell “ in either or all of said ways.” There was no error in the matter complained of, and the judgment must be affirmed. Affirmed. Delivered June 10, 1892.