257 F.2d 56 (9th Cir. 1958), 15512, Maulding v. United States

Docket Nº:15512.
Citation:257 F.2d 56
Party Name:Glenn P. MAULDING, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 29, 1958
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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257 F.2d 56 (9th Cir. 1958)

Glenn P. MAULDING, Appellant,


UNITED STATES of America, Appellee.

No. 15512.

United States Court of Appeals, Ninth Circuit.

May 29, 1958

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[Copyrighted Material Omitted]

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T. N. Gore, Jr., Fairbanks, Alaska, Edgar Paul Boyko, Anchorage, Alaska, for appellant.

George M. Yeager, U.S. Atty., Paula A. Tennant, Asst. U.S. Atty., Fairbanks, Alaska, for appellee.

Before HEALY, POPE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Glenn P. Maulding, a trailer dealer in Fairbanks, Alaska, was tried and convicted on a charge of feloniously and wrongfully converting to his own use the sum of $2, 500, the property of the Bank of Fairbanks. It was alleged in the indictment that this sum had been received by Maulding for the sale of a house trailer. The trailer, according to the indictment, was the property of the bank, pursuant to a bill of sale from Maulding to the bank. It was further alleged that the bank had given Maulding custody of the trailer 'in trust.' The described acts were alleged to have been done in violation of § 65-5-62 of the Alaska Compiled Laws Annotated 1949, entitled 'Embezzlement by Bailee.' 1

On this appeal, Maulding contends that, under the undisputed facts, it must be held, as a matter of law, that no relationship of bailor and bailee existed between the bank and appellant, and that the statute relied upon is therefore not applicable. On this ground, he specifies as error the denial of his motion for judgment of acquittal made at the close of the evidence offered by the government, and the denial of his motion for a new trial.

Appellee has moved to dismiss the appeal on the ground that the motion for judgment of acquittal was waived, and that denial of a motion for a new trial is not reviewable in this court.

Appellant waived the motion for judgment of acquittal made and denied at the close of the government's case, when he thereafter produced evidence in his own behalf. Mosca v. United States, 9 Cir., 174 F.2d 448. This being the case, we cannot now review the action of the trial court in denying that motion. 2

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The trial court, however, considered the legal question as to whether a relationship of bailor or bailee existed as having been raised by the motion for a new trial. That court dealt with the question at length in its comprehensive decision denying that motion. United States v. Maulding, D.C., 147 F.Supp. 693. Such denial was specified as error. This court will review the ruling on a motion for a new trial for error of law or abuse of discretion. Cavness v. United States, 9 Cir., 187 F.2d 719, 722. We therefore conclude that the question is properly before us. The motion to dismiss the appeal is denied. 3

The following undisputed facts are to be considered in determining whether a bailor-bailee relationship existed between the bank and Maulding, within the meaning of the statute. In order to finance the acquisition of trailers for purposes of sale, Maulding entered into a 'Floor Plan Agreement' with the Bank of Fairbanks. This agreement was not introduced in evidence. Thereafter, in May, 1952, according to an invoice introduced in evidence, Manhattan Trailer Sales, of California, sold the trailer in question to the bank for a purchase price of $2, 510.39. The invoice indicates that the trailer was shipped to the bank. Maulding prepaid the freight.

On June 16, 1952, the bank 'floored' the trailer with Maulding after he executed a trust receipt with attached promissory note and a bill of sale. The trust receipt, as indicated on its face, was issued pursuant to the Uniform Trust Receipts Law of Alaska, chapter 40, S.L.A.1951. In this instrument, Maulding acknowledged receipt of the trailer, designated 'Trust Property.' The trailer was stated to have an 'invoice price' of $2, 510.39, and a 'minimum sale price' of $3, 750.

The trust receipt also constitutes an acknowledgment by Maulding (designated 'Trustee') that a 'security interest' in the trailer (called 'Trust Property') remains in the bank (designated 'Entruster') 'until payment in full by the Trustee of the note annexed hereto.' The receipt contains a number of conditions and agreements. Maulding agreed to return the trailer 'on demand and in good order and unused.' He agreed to hold the trailer as 'trustee' for the bank, but with the right to exhibit and sell it 'for the account' of the bank for cash and for not less than the minimum price specified in the instrument. Maulding, as 'trustee, ' also agreed, in the event of such a sale, (1) to notify the bank promptly, (2) to hold the proceeds 'in trust' for the bank, and (3) to deliver such proceeds promptly to the bank.

Maulding also agreed, in this instrument, that he would not rent, mortgage, pledge, encumber, use for demonstration, operate, or otherwise use the trailer. He further agreed that he would make no sale of the trailer 'except as trustee for the Entruster, ' and that 'a security interest' in the trailer 'remains and is fully preserved in the Entruster until payment of the note. * * *' The trust receipt contains a clause, quoted in the margin, making reference to the 'Floor Plan Agreement.' 4

The promissory note signed by Maulding, which was attached to the trust receipt,

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is for the sum of $2, 500, payable on demand to the order of the bank. It contains a clause referring to the Floor Plan Agreement, quoted in the margin. 5 The bill of sale from Maulding (denominated 'vendor') to the bank is in the usual form for such instruments.

On May 9, 1953, Maulding sold the trailer to Glenn and Janette Hanneman for the sum of $2, 800 in cash. Maulding used all of the proceeds of this sale for other personal and business obligations. He did not notify the bank of the sale or account for, or deliver to, the bank any of the proceeds. In September or October, 1953, the bank learned of the sale. Maulding was not then in Alaska.

A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to...

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