256 F.2d 937 (10th Cir. 1958), 5777, B-W Acceptance Corp. v. Colley

Docket Nº:5777.
Citation:256 F.2d 937
Party Name:B-W ACCEPTANCE CORPORATION, Appellant, v. R.P. COLLEY, Trustee in Bankruptcy of Shafer Tire and Appliance Center, a co-partnership consisting of Bill L. Shafer, Jack A. Shafer, and Jack J. McKenna, Bankrupt, Appellee. In the Matter of Bill L. SHAFER, Jack A. Shafer, and Jack J. McKenna, individually, and as co-partners, trading under the firm name
Case Date:June 05, 1958
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 937

256 F.2d 937 (10th Cir. 1958)

B-W ACCEPTANCE CORPORATION, Appellant,

v.

R.P. COLLEY, Trustee in Bankruptcy of Shafer Tire and Appliance Center, a co-partnership consisting of Bill L. Shafer, Jack A. Shafer, and Jack J. McKenna, Bankrupt, Appellee.

In the Matter of Bill L. SHAFER, Jack A. Shafer, and Jack J. McKenna, individually, and as co-partners, trading under the firm name of Shafer's Tire and Applicance Center, Bankrupt.

No. 5777.

United States Court of Appeals, Tenth Circuit.

June 5, 1958

Page 938

James H. Harrod, Oklahoma City, Okl., for appellant.

Joe N. Shidler, Tulsa, Okl. (Wm. J. Threadgill, Tulsa, Okl., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit judges.

PHILLIPS, Circuit Judge.

Prior to May 1, 1957, Bill L. Shafer, Jack A. Shafer, and Jack J. McKenna, individuals and copartners, trading under the name of Shafer's Tire and Appliance Center, were adjudicated bankrupts. They are hereafter referred to as Shafer.

R. P. Colley is the duly appointed, qualified and acting trustee of Shafer.

The Borg-Warner Corporation is the manufacturer of Norge products. Borg-Warner Acceptance Corporation 1 is a finance company owned by Borg-Warner. Modern Appliance Distributors 2 is the distributor of Norge products in Oklahoma City.

Shafer was engaged in the sale of Norge products at retail in Oklahoma City.

Upon the receipt by Modern from Shafer of an order for Norge products, Modern prepared three instruments: (1) An invoice showing that the products described therein were sold to the Acceptance Corporation; (2) A promissory note payable to the Acceptance Corporation, whereby Shafer agreed to pay the sum stated in the note, which was the total amount of the invoice, within three months after date, and (3) An instrument designated 'Trust Receipt' which described each item by model number and serial number and a release price stated opposite each item.

The three instruments were submitted to the Acceptance Corporation for its approval. Each was approved and they were then signed by the duly authorized attorney in fact of Shafer. Thereupon the goods were shipped by Modern to Shafer. The Acceptance Corporation retained the original promissory note, a copy of the invoice, and the trust receipt. A copy of the trust receipt was forwarded to Shafer. The Acceptance Corporation returned a copy of the invoice to Modern, with its check in payment of the invoice.

The trust receipt in part read:

'* * * Due in full in 90 days or as mdse is sold retail if before due date of contract.

Page 939

'I (we) hereby acknowledge that said articles and any substitutions, exchanges, or replacements thereto are the Property Of Said B-W Acceptance Corporation and agree to take and hold the same, at my (our) sole risk as to all loss or injury, for the purpose of storing said...

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