Hyman v. Semmes

Decision Date15 May 1928
Docket NumberNo. 4966.,4966.
Citation26 F.2d 10
PartiesHYMAN v. SEMMES.
CourtU.S. Court of Appeals — Sixth Circuit

Wils Davis, of Memphis, Tenn. (Davis Costen & Wallace, of Memphis, Tenn., on the brief), for appellant.

W. H. Borsje, of Memphis, Tenn. (Lamar Heiskell, of Memphis, Tenn., on the brief), for appellee.

Before DONAHUE and MOORMAN, Circuit Judges, and HICKENLOOPER, District Judge.

HICKENLOOPER, District Judge.

For a number of years prior to January 1, 1924, the bankrupt, A. B. Speight, had carried on the business of buying and selling hardwood lumber, principally hickory cut to required dimensions, in the city of Memphis, Tenn. For the purpose of so conducting his business, he had leased and occupied a building at No. 883 North Front street in said city, where portions of the lumber were bundled and stored, and where such lumber would, when necessary, be trimmed or sawed to meet the requirements of the customer. Prior to January 1, 1924, the bankrupt had become largely indebted to appellant, H. W. Hyman, doing business as the Capital Investment Company, through the discount of accounts receivable and the credit failure or bankruptcy of customers whose accounts were so discounted.

Being so indebted, the bankrupt entered into a new agreement with the Capital Investment Company, on or about January 1, 1924, whereby it was agreed that the bankrupt would continue to secure orders for dimension stock, and would from time to time procure the lumber to fill such orders from various mills. All such purchases and sales, with possibly only an occasional exception, were made in the name of A. B. Speight Company; all purchases being made on the basis of sight draft with bill of lading attached. Upon the arrival of the draft in Memphis, the draft, freight, and switching and handling charges would be paid by the Capital Investment Company, and a bill of sale given by A. B. Speight to that company covering the specific consignment. Nearly all of such consignments were handled by immediate reconsignment to purchasers, without unloading, but a number of cars which could not be immediately reshipped upon orders were unloaded and stored in the building of the bankrupt. The agreement of January, 1924, contemplated and provided that from the proceeds of sale of all lumber handled thereunder the Capital Investment Company was to receive reimbursement for the amount of its disbursements plus a fixed profit of $5 per thousand feet of lumber. Any profits in excess of $5 per thousand feet were to be credited to the open account of the bankrupt representing the old indebtedness and any subsequent advances made to the bankrupt for living expenses, etc.

On October 27, 1925, A. B. Speight was duly adjudicated a bankrupt upon his voluntary petition filed the same day. On October 28th and 29th there were shipped and billed two cars of lumber from the stock on hand in the A. B. Speight Company building. The proceeds of sale of these two cars amounted to the sum of $1,511.14, as found by the referee in bankruptcy who, under appropriate proceedings, issued an order upon H. W. Hyman, doing business as the Capital Investment Company, to turn over this sum to the trustee in bankruptcy of A. B. Speight. The present appeal involves not only the validity of this turnover order but also the question of ownership of the remaining stock on hand in the A. B. Speight Company building at the time of bankruptcy, as to which latter stock a reclamation petition was filed by H. W. Hyman. At the time of bankruptcy all the stock on hand and sought to be reclaimed bore small hand-written cards or labels in the words, "This is the property of the Capital Investment Co." These cards had been removed from the lumber shipped, which, upon shipment, bore only a metal tag carrying the name of A. B. Speight Company. Upon petition for review, the court below approved the turnover order and upon report of the standing master the court denied relief to Hyman under his reclamation petition. The appeal is prosecuted as to both branches of this judgment of the District Court.

The correct determination of the issue here presented depends upon the construction to be given the contract between the appellant and the bankrupt. If the bills of sale given in pursuance of that contract were intended to convey title absolute, and if such bills of sale and the contract, under all the surrounding circumstances of the case, constituted a bona fide purchase by and sale to the Capital Investment Company of the lumber here in question, and such lumber was thereupon separately held and marked as belonging to the buyer, the right to possession as against the trustee may be conceded. Stelling v. G. W. Jones Lumber Co., 116 F. 261 (C. C. A. 7); In re Ozark Cooperage & Lumber Co., 180 F. 105 (C. C. A. 8). But if, on the other hand, such title as passed to the Capital Investment Company was intended to have, or in law had, effect only as security for the repayment of advances, past or coincident, then, under the law of Tennessee, such security title is subordinate to the rights of...

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4 cases
  • Missouri Finance Corp. v. Roos
    • United States
    • Missouri Court of Appeals
    • 8 Marzo 1932
    ... ... to determine if there is usury. Puryear-Meyer Gro. Co. v ... Cardwell Bank, 4 S.W.2d 489; Hyman v. Semmes, ... 26 F.2d 10; General Motors Accept. Corp. v ... Weinrich, 262 S.W. 425, 218 Mo.App. 68; Wilson v ... Wilson, 115 Mo.App. 641; ... ...
  • Bosler v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 15 Mayo 1928
  • In re Owensboro Canning Co., Inc., Civ. A. No. 85-0067-O(CS).
    • United States
    • U.S. District Court — Western District of Kentucky
    • 8 Febrero 1988
    ...the parties intended to create a security agreement is a "question of fact, or at best, mixed questions of law and fact"; Hyman v. Semmes, 26 F.2d 10, 12 (6th Cir.1928); see White & Summers, § 23-3 at p. 905 n. 5; and, "unless the Bankruptcy Judge has made a clear mistake applying the law t......
  • In re Johnson
    • United States
    • U.S. Bankruptcy Court — Eastern District of Michigan
    • 6 Abril 2000
    ...not determine its effect. See, e.g., Heryford v. Davis, 102 U.S. 235, 244, 26 L.Ed. 160 (1880) (cited with approval in Hyman v. Semmes, 26 F.2d 10, 11 (6th Cir.1928); Matter of Porter, 202 B.R. 109, 119 (N.D.Ind.1996)); 17A Am.Jur.2d Contracts § 391 (1991). The document itself says that "th......

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