212 F. 97 (4th Cir. 1914), 1209, Townsend v. Ashepoo Fertilizer Co.

Docket Nº:1209.
Citation:212 F. 97
Party Name:TOWNSEND v. ASHEPOO FERTILIZER CO.
Case Date:February 06, 1914
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 97

212 F. 97 (4th Cir. 1914)

TOWNSEND

v.

ASHEPOO FERTILIZER CO.

No. 1209.

United States Court of Appeals, Fourth Circuit.

February 6, 1914

Page 98

George B. Timmerman, of Lexington, S.C. (Thurmond, Timmerman & Callison, of Lexington, S.C., on the brief), for petitioners and cross-respondents.

Geo. F. von Kolnitz, of Charleston, S.C., for respondent and cross-petitioner.

Before PRITCHARD and WOODS, Circuit Judges, and ROSE, District Judge.

WOODS, Circuit Judge.

The petitions of the trustee of the bankrupt estate of W. P. Roof, and of Ashepoo Fertilizer Company, claiming to be a lien creditor or owner of assets in the hands of the trustee, involve important questions under the recording statutes of South Carolina.

On February 6, 1912, Ashepoo Fertilizer Company agreed to sell W. P. Roof 265 tons of fertilizers; the form of contract adopted being a written proposition to Roof setting forth prices and terms, duly accepted by him. The second paragraph of the contract contained this stipulation:

Page 99

'All of the said goods sold to you on credit are to be held by you in trust for the payment of your obligations to Ashepoo Company, for the purchase price thereof, as per above sale, and when the same shall be fully paid then for your own benefit, with full power in you, however, to sell and dispose of the same, or any part thereof, for cash or on credit secured by good note and such other good securities as you require; provided that the proceeds of any such sale and sales, whether cash or credit, shall represent the goods sold and be held by you upon the same terms and for the same purposes as the goods are held and the cash for cash sales to be remitted, when the goods are sold to Ashepoo Fertilizer Company, to be applied to the payment of your obligation to them, whether they have matured or not, until they are paid in full.'

All fertilizers shipped to Roof in excess of the 265 tons were to be received by him on the same conditions. He was authorized to collect from his customers the debts contracted for fertilizers, and remit to the company for credit on the purchase price. On March 22, 1912, about six weeks after the execution of the contract, Roof was adjudged a bankrupt. In the meantime he had ordered out and received a number of shipments of fertilizer, all of which he had resold to his customers except a little over a car load which was in his hands when the petition in bankruptcy was filed. The sales to his customers had been charged to them on his books, but no notes or other singed obligations had been taken. Under these conditions the referee held that failure to record the agreement made the reservation of title or lien for the security of Ashepoo Fertilizer Company void under the recording laws of South...

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