171 F. 375 (4th Cir. 1909), 874, Walter A. Wood Mowing & Reaping Mach. Co. v. Vanstory

Docket Nº:874.
Citation:171 F. 375
Party Name:WALTER A. WOOD MOWING & REAPING MACH. CO. v. VANSTORY.
Case Date:June 09, 1909
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 375

171 F. 375 (4th Cir. 1909)

WALTER A. WOOD MOWING & REAPING MACH. CO.

v.

VANSTORY.

No. 874.

United States Court of Appeals, Fourth Circuit.

June 9, 1909

Page 376

This is an appeal from an order of the District Court sitting as a Court of Bankruptcy of the United States for the Western District of North Carolina, approving and confirming the report of the special master herein, and dismissing appellant's petition for the possession of certain machinery in the hands of the trustee in bankruptcy of the Wakefield Hardware Company.

The petition alleged: That, for a number of years and up to the filing of the petition of bankruptcy, the Wakefield Hardware Company acted as agent for the appellant for the storage and transfer of certain mowing and reaping machinery; that the Wakefield Hardware Company agreed to receive machinery belonging to the appellant, to store the same, and to ship the same out on the order of the appellant to parties whom appellant should designate; that it was agreed by the appellant that the Wakefield Hardware Company should receive a fixed compensation for this service; that, in accordance with this agreement, machinery was, from time to time, to be delivered by the appellant to the Wakefield Hardware Company to be held according to the terms of the said agreement; and that certain machinery now in the possession of the trustee in bankruptcy of the Wakefield Hardware Company, and easily capable of identification, was acquired by virtue of this contract to be stored and reshipped according to the terms thereof.

The petition further alleged: That, in September, 1906, the appellant entered into written contracts with the Wakefield Hardware Company, promising to sell and deliver to the said company certain machinery, but on the express condition and trust that all such machinery and the proceeds of all sales thereof, whether the same consisted of notes, cash, or book accounts, should be held by the Wakefield Hardware Company as collateral security in trust and for the benefit of and subject to the order of the appellant, until all indebtedness due said appellant by the Wakefield Hardware Company should be paid in full in cash; that certain machinery was delivered to the Wakefield Hardware Company in pursuance of the terms of this contract; and that certain pieces of the said machinery, described in the petition and easily capable of identification, are now in possession of the trustee in bankruptcy.

The petition prayed that the trustee in bankruptcy might be ordered to turn over to the appellant both the machinery which had been received by the Wakefield Hardware Company for the purpose of storage and transfer and also the machinery which had been received by the said company in accordance with the contracts of September, 1906, and which was described in said contracts, and which by the agreements in said contracts was held in trust for the benefit of and subject to the order of the appellant.

Page 377

John J. Parker (David Stern, on the brief), for appellant.

Thomas S. Beall and Robert R. King (Scott & Mclean and King & Kimball, on the brief), for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

PRITCHARD, Circuit Judge (after stating the facts as above).

In passing upon the question sought to be determined by this appeal, it will only be necessary to consider the third and fourth assignments of error.

The third assignment of error relates to the property described in the first section of the petition, which reads as follows:

'That for a number of years and up to the time of filing of petition of bankruptcy herein, the Wakefield Hardware Company acted as agent for your petitioner for the storage and transfer of certain mowing and reaping machinery. That the Wakefield Hardware Company contracted with your petitioner to safely and securely keep certain mowing and reaping machinery for your petitioner and deliver the same to your petitioner or its agent on request. That your petitioner under said agreement has stored with the Wakefield Hardware Company for safe-keeping, and the said Wakefield Hardware Company has received for storage and safe-keeping, the following mowing and reaping machinery, all manufactured by the Walter A. Wood Mowing & Reaping Machinery Company, to wit: 5 mowers; 5 self-dump rakes; 6 hand-dump rakes less 1 set teeth and 1 wheel; 2-8-18 disc harrows; 3-10-20 disc harrows; 3-8-20 disc harrows; 5-10-20 disc harrows; 3-3 horse attachments; 13-2 horse attachments; 14 spike-tooth harrows; a lot of machinery repairs, consisting of a large number of nuts and bolts, amounting in value to $276.21, which said repairs are separated in boxes and bins in the store of the Wakefield Hardware Company. That all of the above-described machinery and repairs is on the second floor and in the basement of the store on North Elm street, Greensboro, N.C., formerly occupied by the bankrupt, and all is easily capable of identification as property of your petitioner. That your petitioner promised to pay the Wakefield Hardware Company as storage and transfer charges the sum of $1 on each mower, and the sum of 50 cents on each rake, and the sum of 50 cents on each disc harrow, and the sum of 25 cents on each spike-tooth harrow, all of which your petitioner is willing and ready to pay as soon as its rights herein are determined.'

Page 378

The special master in his report, in dealing with the property described in the first paragraph of the petition, among other things, announced the following conclusions of law:

'First. It is contended by the petitioner: That the contract between it and the bankrupt in regard to the machinery described in the first finding of fact was one of bailment, and, at most, that of agency. That while the bankrupt could dispose of any machines described in the first finding of fact to its own customer at any time it saw fit without reporting the sale to the petitioner, that this was merely for convenience, and that the sale was made as the agent of the petitioner, and that the title had never passed to the bankrupt.

'In my opinion the facts do not bear such construction. The evidence is that the bankrupt was permitted by the petitioner to carry insurance in its own name, and for its own benefit, upon the machines. The bankrupt had a right to sell any machines at any time it saw fit to its own customer upon its own terms and use the proceeds as its own without reporting the sale or either remitting the proceeds to the...

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