Hillman's Equipment, Inc. v. Central Realty, Inc., 20708
| Decision Date | 16 December 1968 |
| Docket Number | No. 20708,No. 2,20708,2 |
| Citation | 242 N.E.2d 522,144 Ind.App. 18 |
| Parties | , 5 UCC Rep.Serv. 1160 HILLMAN'S EQUIPMENT, INC., Appellant, v. CENTRAL REALTY, INC., the First National Bank in Wabash, Terry E. Cooper, Kay Cooper, Terry E. Cooper, d/b/a Terry's Restaurant, Appellees |
| Court | Indiana Appellate Court |
Robert S. McCain, Fay Leas, Ft. Wayne, for appellant.
Charles R. Tiede, Plummer, Tiede, Magley & Metz, Wabash, for appellees.
Upon the appellant's petition for a rehearing of this cause the court has reconsidered its decision of April 10, 1968, 235 N.E.2d 496, and now supersedes the same as follows:
This is an action brought by the appellant, Hillman's Equipment, Inc., against the appellees, Central Realty, Inc. (hereinafter referred to as 'Central'), The First National Bank in Wabash (hereinafter referred to as 'First National'), Terry E. Cooper, Kay Cooper and Terry E. Cooper, d/b/a Terry's Restaurant (hereinafter referred to as 'Cooper'), for replevin and conversion of certain restaurant equipment. The appellees Central and First National filed a motion for summary judgment. Appellant subsequently filed its motion to deny the summary judgment, with supporting affidavits. On July 1, 1966, the court granted said appellee's motion for summary judgment and entered its judgment accordingly. Appellant then filed a motion for new trial, which was overruled on November 15, 1966, and now assigns as error the overruling of said motion.
The evidence reveals the following with respect to the case at bar:
March 20, 1965. Cooper, as lessee, and Central, as lessor, entered into a lease agreement for a restaurant at Central Shoppers Mart, 1146 North Cass Street, Wabash, Indiana, which lease, in part, provides: 'In addition to other rights hereunder LESSEE hereby gives and grants to LESSOR a lien against inventory and fixtures of LESSEE to secure the payment of the obligations of LESSEE hereunder.'
June 9, 1965. Cooper placed an order for more restaurant equipment with the appellant. This equipment, which is the subject matter of this dispute, was delivered at different times between June 9, 1965, and October 16, 1965.
June 22, 1965. Cooper purchased $20,448.00 worth of restaurant equipment from appellant for which appellant was paid in full from the proceeds of a promissory note made by Cooper to First National. Payment of this note was guaranteed by Central. Cooper executed a security agreement with First National, the terms of which gave First National a security interest in 'All Restaurant Equipment and Fixtures now owned, or hereafter acquired, located at Terry's Restaurant, 1146 North Cass Street, Central Shoppers Mart, Highway 15 North, Wabash, Indiana', and authorized First National to file a financing statement covering such security interest.
June 29, 1965. First National, as secured party, filed a financing statement in the Office of the Indiana Secretary of State, identifying Cooper as the debtor, which financing statement covered 'All Restaurant Equipment and Fixtures now owned, or hereafter acquired, located at Terry's Restaurant'.
December 10, 1965. Cooper executed a security agreement to appellant covering all of the restaurant equipment which was placed in Cooper's possession from June 9, 1965, up to October 16, 1965. The security agreement bears the date 'Dec. _ _, 1965' and further provides that the first installment payment thereunder is due 'January 10, 1966', but appellant maintains the agreement was not actually signed by the debtor Cooper until January 18, 1966.
January 18, 1966. Appellant filed a financing statement claiming a security interest in the restaurant equipment delivered from June 9 to October 16, 1965, in the Office of the Recorder of Wabash County, Indiana. This financing statement is not signed by the debtor Cooper and in the space provided for showing the authority for the filing is marked: 'This statement is filed without the debtor's signature to perfect a security interest in collateral (X) under a security agreement signed by the debtor authorizing secured party to file this statement * * *', which said authorization does not appear in the security agreement executed by Cooper to appellant.
February 24, 1966. By reason of Cooper being in default of three rent payments due under the lease, and by reason of Cooper being in default for the January and February note payments to First National and guaranteed by Central, Central, with the consent and permission of First National, took possession of the premises and all restaurant equipment of Cooper, including that placed in Cooper's possession by appellant between June 9 and October 16, 1965.
April 13, 1966. First National formally assigned its security interest and rights therein to Central in consideration of Central's paying the Cooper note of June 22, 1965.
April 18, 1966. Central gave notice to appellant that it was selling at public sale on May 2, 1966, all equipment of Cooper pursuant to the security interest of it and First National. This notice was also given to all other creditors by publication in various newspapers.
April 29, 1966. Cooper signed a document purporting to surrender to appellant 'right, title and interest' and 'the immediate possession' of the equipment delivered to Cooper from June 9 to October 16, 1965. Appellant also filed a financing statement with the Secretary of State of the State of Indiana claiming a security interest in the restaurant equipment delivered to Cooper from June 9 to October 16, 1965.
May 2, 1966. The restaurant equipment in question was sold, along with the other equipment, at public sale.
The facts at bar clearly establish the following with respect to the restaurant equipment in controversy:
That the security agreement executed June 22, 1965, by the debtor Cooper with First National was a purchase money lien covering all equipment listed therein and all other equipment and fixtures thereafter acquired by the debtor Cooper. This security agreement applied to the equipment in controvery, even though it was not a purchase money lien. Acts 1963, ch. 317, § 9--110, p. 539 (§ 19--9--110, Burns' 1964 Repl.); Muncie National Bank et al. v. Brown (1887), 112 Ind. 474, 14 N.E. 358.
That the security agreement executed by the debtor Cooper with First National was perfected through the filing of a financing statement with the Secretary of State on June 29, 1965. Acts 1963, ch. 317, § 9--302, p. 539 (§ 19--9--302(1), Burns' 1964 Repl.); Acts 1963, ch. 317, § 9--401, p. 539 (§ 19--9--401(1)(c), Burns' 1964 Repl.).
That the restaurant equipment in controversy was sold and delivered by appellant...
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