City Nat. Bank of Houston v. Phillips

• Decision Date: 03 August 1951
• Docket Number: No. 13287.,13287.
• Citation: 190 F.2d 97
• Parties: CITY NAT. BANK OF HOUSTON v. PHILLIPS.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 97 (1951)

CITY NAT. BANK OF HOUSTON v. PHILLIPS.

No. 13287.

United States Court of Appeals Fifth Circuit.

June 18, 1951.

Rehearing Denied August 3, 1951.

Earl A. Brown, Jr., Houston, Tex., for appellant.

Emory T. Carl, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

This appeal is from a judgment of the United States District Court for the Southern District of Texas confirming, on petition for review, an order of the referee in bankruptcy allowing in part one of two separate security claims filed by appellant, City National Bank of Houston, and disallowing the other.

One claim alleged that the bankrupt, William R. Malone, doing business as Refrigeration Engineering and Sales Company, was indebted to appellant in the amount of $2,194.99, the payment for which was secured by warehouse receipts covering four Bishop Food Freezes and by pledge of one open display case. The trustee conceded the validity of appellant's lien against the portion of the property secured by the warehouse receipts but objected to the allowance of the claim in so far as it related to the open display case.

The other claim alleged that the bankrupt was further indebted to appellant in the amount of $11,172.39, which was secured by a chattel mortgage and by a floor plan agreement. The trustee objected to allowance of the claim on four grounds: (1) that the chattel mortgage is void under Article 4000, R.S. Texas, 1925, Vernon's Ann. Civ.St., as an attempt to give a lien on a stock of merchandise daily exposed for sale; (2) that the attempted trust agreement is void for the reason that it was not filed for record as required by law; (3) that the security agreements constituted a transfer in violation of the Texas Bulk Sales Act, Article 4001, R.S. Texas, 1925; and (4) that the claimant, within four months prior to the institution of these proceedings, had received payments which constituted voidable preferences.

A hearing was had and thereafter the referee made findings of fact and conclusions of law which, save for the alleged violation of the Bulk Sales Act, fully sustained the trustee's contentions. Accordingly, the referee allowed the first mentioned claim as a secured claim, with the exception of the one open display case, and allowed the second claim as an unsecured claim subject to restoring $1,186.00 which the referee found to be a voidable preference. The trial judge found that there was evidence to support each and all of the referee's findings of fact and, agreeing with his conclusions of law, affirmed the referee's order.

The principle question presented by this appeal is whether the referee and the court below erred in holding that the chattel mortgage fell within the scope of Article 4000, R.S. Texas, 1925, which provides that: "Every mortgage, deed of trust, or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business of such merchandise, and contemplating a continuance of the possession of said goods by said owner, shall be deemed fraudulent and void * * *."

The material facts, so far as they need be stated, are these: On September 25, 1948, the bankrupt was indebted to appellant in the amount of $10,500, representing the unpaid balance on a pre-existing indebtedness. On September 29, 1948, appellant loaned the bankrupt the additional sum of $5,000 in cash and the bankrupt executed a note payable to the order of appellant in the total amount of $15,500.00 and contemporaneously therewith executed and delivered to appellant, as security for the payment of the note, a chattel mortgage¹ on certain described electrical equipment located at the bankrupt's place of business. In addition to the chattel mortgage, the parties entered into a floor plan agreement whereby each item of the crated electrical equipment covered by the chattel mortgage was to be set aside in the storeroom of the bankrupt's place of business and was to be marked "City National Bank." The chattel mortgage was promptly filed for record and the goods were marked as agreed. The various items of electrical equipment were kept in the bankrupt's storeroom and not on display. Nonetheless, all items on hand, whether located in the display room or the storeroom, were offered for sale and sold indiscriminately, without first obtaining the written consent of the appellant. This was known to appellant, who made regular inspections of the goods in order to determine whether they were properly tagged and whether any of the goods had been sold and not accounted for. When and as sales were made of property described in the chattel mortgage, the bankrupt would remit to appellant an agreed amount.

It further appears that appellant loaned to bankrupt on December 18, 1948, the sum of $2,517.34 to cover a shipment of electrical equipment consigned to the bankrupt with draft and bill of lading attached. The equipment was delivered by the carrier direct to a public warehouse which issued warehouse receipts to appellant, City National Bank of Houston. Thereafter, as evidenced by letter dated December 27, 1948, appellant permitted the bankrupt to remove one open display case to be used for exhibition...