In re Bell Motor Co., 8946

• Decision Date: 14 November 1930
• Docket Number: 8947.,No. 8946,8946
• Citation: 45 F.2d 19
• Parties: In re BELL MOTOR CO. CRAIG v. INDUSTRIAL ACCEPTANCE CORPORATION (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

45 F.2d 19 (1930)

In re BELL MOTOR CO. CRAIG v. INDUSTRIAL ACCEPTANCE CORPORATION (two cases).

Nos. 8946, 8947.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1930.

George V. Farris, of Joplin, Mo., for appellant.

A. A. Mabrey, of Chicago, Ill. (W. S. McClintock, A. L. Quant, and F. K. Ferguson, all of Kansas City, Mo., on the brief), for appellee.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment of the lower court reversing an order of the referee in bankruptcy denying the reclamation petition of the appellee, Industrial Acceptance Corporation. The judgment of the District Court sustained the petition for review and remanded the cause to the referee in bankruptcy "with instructions to grant and sustain the petition of the Industrial Acceptance Corporation, for reclamation," etc.

The Bell Motor Company, a Missouri corporation, with its place of business at Joplin, Mo., was adjudged a bankrupt on April 28, 1928, upon petition filed on that date by certain of its creditors. On the same day a receiver was appointed, who took charge of all property then in possession of the bankrupt, including a number of automobiles manufactured by the Studebaker Corporation of America, for which company the bankrupt was the distributing agent for Joplin, Mo., and surrounding territory. Following the taking over of these automobiles by the receiver, the Industrial Acceptance Corporation, of South Bend, Ind., appellee herein, filed its petition for reclamation of these automobiles, claiming title and right of possession thereto on the grounds that (1) it was the absolute owner of these motor vehicles under trust receipts; (2) that, if the trust receipts were construed to be conditional sale agreements, then the filing thereof for record prior to bankruptcy, created liens valid as against the trustee; (3) that it was entitled to recover the property because the bankrupt obtained same upon materially false credit statements relied upon by it; and (4) that the bankrupt obtained the property without reasonable expectation of paying for same, and with actual intent not to pay therefor.

In response to the petition for reclamation, the trustee in bankruptcy answered, admitting possession of the automobiles, which he alleged he took as receiver on the 29th of April, 1928, and that he was in possession of the same as trustee of the estate of the Bell Motor Company, bankrupt; that the trust receipts relied upon by the petitioner, Industrial Acceptance Corporation, were merely security for the trade acceptances given by the Bell Motor Company to the petitioner; that the Bell Motor Company was at all times in possession of the automobiles; that the trust receipts were not recorded, as required by law, and that upon adjudication in bankruptcy the trustee became possessed of the automobiles by virtue of the National Bankruptcy Act; that the contract for sale of the automobiles was made in the state of Missouri, and hence was governed by the laws thereof, and that it is provided in section 2282, Revised Statutes of Missouri 1919, the same being the laws of Missouri in force at the time, that "No sale of goods and chattels, where possession is delivered to the vendee, shall be subject to any condition whatever as against creditors of the vendee, or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed and acknowledged by the vendee, and recorded as now provided in cases of mortgages of personal property"; that by reason of these provisions, all the conditions of the trust receipts were void as against creditors of the Bell Motor Company, bankrupt, and said automobiles became a part of the bankrupt estate, to be administered for the benefit of all creditors. The answer contained a denial of all allegations, except those specifically admitted.

Subsequent to the hearing before the referee, the automobiles were ordered sold, and the proceeds of such sales are now in the hands of the trustee.

For a number of years prior to the transactions involved in this proceeding, the Bell Motor Company had a written contract with the Studebaker Corporation of America to sell Studebaker cars. On the 23d of April, 1928, it made an assignment of all its property to the Conqueror Trust Company as trustee for the benefit of all its creditors, and the trust company took possession of all the property of the motor company under the terms of this assignment, but on April 28th a petition in bankruptcy was filed, and a receiver appointed, as has already been noted. The Industrial Acceptance Corporation is a corporation separate and distinct from the Studebaker Company, engaged solely in the matter of financing motorcar dealers dealing in Studebaker automobiles. It did not itself buy and sell automobiles, but bought trade acceptances and notes, and for some time had financed the purchase of automobiles by the Bell Motor Company. The method of dealing was as follows: The Bell Motor Company would order from the Studebaker Company such automobiles as it desired, and these cars would be shipped by the Studebaker Company on shipper's order, with sight draft attached, to Joplin, Mo., the draft being sent to some bank in Joplin, with instructions to deliver the bill of lading to the Bell Motor Company upon payment of the draft, which draft was payable as follows: Twenty per cent. of the amount of the purchase price in cash by the Bell Motor Company and the remaining 80 per cent. to be paid by trust receipts and trade acceptances attached to the draft, payable to the Industrial Acceptance Corporation and executed by the Bell Motor Company. The bill of lading was then delivered to the Bell Motor Company, and possession of the automobiles taken thereunder.

Between September, 1927, and March, 1928, the Bell Motor Company had purchased from the Studebaker Company a number of automobiles under the arrangement above set forth. The trust receipts covering these transactions were held by the Industrial Acceptance Corporation, and were not filed or recorded in the office of the recorder of Jasper county, Mo., until the 23d of April, 1928, five days before filing of the petition in bankruptcy. These trade acceptances and trust receipts were on printed forms, and, with the exception of dates and amounts and descriptions of automobiles named therein, were identical in all respects, and were printed on the same sheet; that is, the trust receipt and the trade acceptance were attached, and were all in the following form:

"Industrial Acceptance Corporation

"South Bend, Indiana

"Automobile Acceptance

"Wholesale

"Kansas City, Mo. Feb. 27, 1928.

"On or before 120 days after date of acceptance hereof, pay to the order of Industrial Acceptance Corporation $839.44 Eight Hundred Thirty-nine and 44/100 Dollars with interest at 6% per annum from date of maturity to date of payment, with exchange. Each of the parties hereto waives presentment for payment, protest and notice of protest and non-payment.

"Industrial Acceptance Corporation "By I. J. Stanley. "To Bell Motor Company (Dealer) "Joplin, Missouri (Address) "Accepted "Date Mar. 15, 1928 "Payable at Conqueror First Natl. Bank (Dealer's Bank) "Joplin, Missouri. "Signed Bell Motor Company "J. W. Lytle, Secy. (Officer or Firm Member) "Dealer's Bank Please Sign

"We hereby certify that attached dealer's signatures are genuine, and also acknowledge having retained first duplicate copy of this acceptance for collection purposes.

"Conqueror First National Bank of Joplin "By H. L. McCubbin.

"Trust Receipt.

"Received from Industrial Acceptance Corporation, a corporation of the State of Virginia, having its general offices in South Bend, Indiana, on behalf of holder of the above Acceptance, which has this day been accepted by the undersigned:

"Bill of Lading covering Studebaker Motor Vehicle, Model Dict. Roy Sedan, Serial Number 1420438, with standard catalogue equipment and attachments.

"In consideration thereof it is agreed that the undersigned will hold said property in trust as the property of said Industrial Acceptance Corporation, for the purpose of storing said property in a clean, dry place, free of charge; that the undersigned has not the right to and will not operate or use said property of the Industrial Acceptance Corporation for demonstration or other purposes, nor loan, rent, mortgage, pledge, encumber, sell or deliver said property except as authorized hereunder; that the undersigned may sell said property for the account of the Industrial Acceptance Corporation or holder of said acceptance, to a bona fide purchaser at retail, for cash or current funds approved by Industrial Acceptance Corporation in amount not less than the sum then due on said acceptance; that the undersigned, upon demand, prior to such sale, will return said property unused, and in good condition to the order of the Industrial Acceptance Corporation; that in the event said property shall be sold as provided herein the undersigned will hold the proceeds thereof in trust and separate from his (its, their) funds until he (it, they) shall have paid over to the Industrial Acceptance Corporation the amount of said acceptance, which amount is to be immediately transmitted to the Industrial Acceptance Corporation for the holder of said acceptance. The undersigned promises to pay all costs, including reasonable attorney's fees, incurred by the holder hereof in the enforcement of its right hereunder. It is understood that nothing herein shall prevent the undersigned, at the time he (it, they) first takes possession of said vehicle, from driving it direct from the warehouse, factory or railroad station to his (its, their) place of business, but at his (its, their) own risk (except in case of theft or fire) in the event of loss or damage to said car or to other property or to persons.

"The undersigned acknowledges receipt of...