Franklin v. Stoughton Wagon Co.

• Decision Date: 26 March 1909
• Docket Number: 2,966 (94).
• Citation: 168 F. 857
• Parties: FRANKLIN v. STOUGHTON WAGON CO. In re FRANKLIN.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 857

FRANKLIN v. STOUGHTON WAGON CO.

In re FRANKLIN.

No. 2,966 (94).

United States Court of Appeals, Eighth Circuit.

March 26, 1909

Robert J. Boone, for appellant.

William B. Moore, for appellee.

Before ADAMS, Circuit Judge, and RINER and AMIDON, District Judges.

RINER District Judge.

This case is here on appeal from a decision of the District Court affirming the order of a special commissioner which directed the return of certain personal property in the hands of a trustee in bankruptcy, and directing the referee to allow, as unsecured, the claim of the Stoughton Wagon Company for $91.50, when properly proved, against the estate and also upon a petition for review.

By agreement of the parties, both cases are to be considered upon the same record.

On the 28th of December, 1907, the Stoughton Wagon Company and George W. Hammer & Co. entered into a written contract for the sale, on commission, of wagons manufactured by the Stoughton Wagon Company to George W. Hammer & Co. upon the terms and conditions set out in the contract. Three of the wagons were disposed of by George W. Hammer & Co., leaving 13 in controversy in this proceeding, together with the claim of $91.50. It appears from the record that George W. Hammer was the party of the second part to this contract, although it is signed, 'George W. Hammer & Co.' While there is no explanation found in the record as to how the contract came to be signed George W. Hammer & Co., we presume it was signed in that form merely as a trade name; it being conceded by both parties that George W. Hammer is the only party interested as party of the second part to the contract. Subsequent to the making of the contract and the delivery of the wagons, George W. Hammer was adjudged a bankrupt, and his property, together with the property in controversy here, was taken possession of by the trustee in bankruptcy. Thereafter on the 19th of June, 1908, the Stoughton Wagon Company filed its petition of intervention in the bankruptcy proceeding claiming to be the owner of the wagons in controversy and requested that the same be delivered to it. The court referred the matter to a special commissioner, who, after taking the testimony, reported that the wagon company was entitled to the possession of the thirteen wagons held by the trustee and to have its claim for $91.50 allowed by the referee as an unsecured claim. The court approved the report and recommendation of the special commissioner, and an order was entered in conformity therewith.

The contract between the Stoughton Wagon Company and George W. Hammer & Co. is as follows:

'This agreement made and entered into this 28th day of December, 1907, by and between Stoughton Wagon Company, Stoughton, Wisconsin, party of the first part, and George W. Hammer and Company, Muskogee, Oklahoma, party of the second part, witnesseth:

'That said first party for and in consideration of the stipulation and agreements herein contained have this day appointed and by these presents do hereby appoint the second party for their authorized agent at Muskogee, Oklahoma, for the sale, on commission, of the goods and articles of merchandise designated hereon, or enumerated and described on schedules or orders of said second party, to be attached hereto as hereinafter provided.

'The party of the first part agrees to furnish on the orders of the said second party so long as they have the goods in stock to fill same during the continuance of this contract the goods and articles of merchandise designated hereon or on schedules or orders hereinafter made; said schedules or orders to set forth prices of goods, the place of delivery, and when properly signed by said party of the second part and accepted by Stoughton Wagon Company, to be attached to and made a part of this contract, reference being made to same on the face thereof, subject to the following conditions, agreements and obligations: The party of the second part agrees as follows:

'(1) To receive from the transportation companies and pay all transportation charges on same, the goods and articles of merchandise sent under terms of this contract.

'(2) To furnish proper warehouse room for all goods and articles of merchandise sent under terms of this contract.

'(3) To pay all taxes, license, rents, and all other expenses incidental to the safe keeping and sale of said goods and articles of merchandise, and to waive all claims against Stoughton Wagon Company for such expense.

'(4) To keep said goods and articles of merchandise insured for their full value at expense of said second party, in the name and for the benefit of Stoughton Wagon Company, in companies provided for them, and to turn over the policies to them, the said Stoughton Wagon Company and in case of any neglect or failure to insure as herein provided, to become personally responsible for any loss or damage that may occur to said goods while in the custody of said second party.

'(5) To keep samples of said goods and articles of merchandise set up in salesrooms suitable for the purpose and to make all reasonable effort to sell them.

'(6) To sell the goods and articles of merchandise sent under this contract for enough more than the prices set opposite said goods in the orders and schedules attached to pay all freight, taxes, expenses and commissions for doing the business, it being mutually understood that the prices set opposite said goods and articles of merchandise are to be furnished, and are the prices which said second party agrees to pay Stoughton Wagon Company for same, as per terms of this contract. The full profits, commissions and expenses of said second party for doing the business to be the difference between said prices received from the sale of said goods.

'(7) To sell all goods and articles of merchandise furnished on this contract, subject to the manufacturers' regular printed warranty, and to settle all claims for breakage and defects in accordance therewith, and agrees not to part possession with any of said goods until the full and satisfactory settlement shall have been made by purchaser, and will not allow under any circumstances any of said goods to be taken away before such settlement has been made.

'(8) The second party further agrees to make out and render to the said first party on the first day of each month, and oftener if requested, a full and complete report of sales made the month previous, or since the last report made, said reports to show the amounts received in cash from such sales, and the amount sold on time; and to accompany said report with a full settlement for all goods so reported sold said settlement to be made with cash, less 5 per cent. for all cash sales and with promissory notes at four months secured by good collateral paper bearing 7 per cent. interest after maturity. And the second party further agrees that when purchaser's notes are given in settlements for sales made as herein provided, said notes will be on blanks furnished by Stoughton Wagon Company and are to be taken only from good prompt paying purchasers. And the second party further agrees to indorse all such notes given to said first party in the following manner, to wit: 'For value received, I or we hereby guarantee the payment of the within note at maturity or any time thereafter and waive demand, protest, notice of protest and nonpayment.'

'(9) To furnish Stoughton Wagon Company (in case any failure of said second party to pay at maturity any obligation or evidence of debt arising under the contract) satisfactory security to secure the payment of all obligations or evidence of debt then outstanding, arising under the contract, whether due or not.

'It is further agreed and understood that the...