A purchaser of a stock of goods who closes the store for the purpose of taking an inventory, publishes notice of the sale in a local newspaper, and permits the property to remain under the control of the vendor, does not thereby acquire such visible and notorious possession as to render the sale valid against the latter's creditors.
PIKE, J.
To render the sale valid as against Moulton's creditor's there should have been "an open, visible change of possession" of the goods. Lang v. Stockwell, 55 N.H. 561, 565; Plaisted v. Holmes, 58 N.H. 293, 294; Parker v. Marvell, 60 N.H. 30; Sanborn v. Putnam, 61 N.H. 506, 507. No such change resulted from the delivery of the key to the defendant, or the taking of the inventory. Smith v. Moore, 11 N.H. 55, 65. Save that he was acting in the capacity of agent, Moulton exercised precisely the same control over the goods after the sale as before. In fact, it appears that it was arranged between the defendant and himself that the goods should be left in his actual possession to sell upon commission. The signs upon the place of business indicated that the character of the possession was not changed. There is no statute which makes the publication of a notice of the sale in a newspaper equivalent to a change of possession. Such a publication resembles an unauthorized record of a bill of sale in the town records, which has been held to be ineffective. Janelle v. Denoncour, 68 N.H. 1. At most it would only give notice of an alleged sale. It would afford no explanation of Moulton's continued possession. It certainly could be no more effective in that direction than would be knowledge by the attaching creditor that the plaintiff claimed to own the goods by purchase from Moulton. Sanborn v. Putnam, 61 N.H. 506. Moulton's retention of possession without satisfactory explanation was, as against attaching creditors, conclusive evidence of fraud. The plaintiff is entitled to judgment.
Case discharged.
BLODGETT, C. J., did not sit: the others concurred.