In re Bowers, 34839-C.
| Decision Date | 29 June 1940 |
| Docket Number | No. 34839-C.,34839-C. |
| Citation | 33 F. Supp. 965 |
| Court | U.S. District Court — Southern District of California |
| Parties | In re BOWERS. |
O. T. Gilbank, of Los Angeles, Cal., for trustee.
Anthony L. Styskal, William G. Kenney, L. J. Styskal, and Frank J. Montgomery, all of Los Angeles, Cal., for respondent Pacific States Loan Co.
The respondent, chattel mortgagee, contends that the bankrupt was not a cafe or restaurant owner, and that if he was, a portion of the fixtures involved and included in the chattel mortgage is not fixtures of a cafe or a restaurant. The bankrupt operated what was known as the "Breakfast Club." He served meals and drinks, not generally to the public, but to selected portions of the public who made special arrangements with him, such as clubs, employee organizations, etc. While ordinarily we think of a cafe or restaurant as a place where meals and drinks are served to the public generally, where the owner serves meals and drinks to selected portions of the public and not to the public generally, he is, none the less, a cafe or restaurant owner. The word "cafe," as ordinarily and popularly used, means a restaurant or house for refreshment. Proprietors' Realty Co. v. Wohltmann, 95 N.J.L. 303, 112 A. 410. A "restaurant" is a place where refreshments can be had to be consumed on the premises, from a near eating house and cook shop to any other place where tables are furnished. State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426. A "restaurant" is an establishment for the sale of refreshments, both food and drink, or a place where meals are served, or an eating house. People v. Gobeo, City Ct., 6 N.Y.S.2d 937. The new Funk & Wagnalls Standard Dictionary defines a "restaurant" to be a place where refreshment or meals are provided to order. The bankrupt, in connection with the chattel mortgage, fully qualifies as a cafe or restaurant owner under Section 3440, Civ.Code. The schedules filed by the bankrupt in the proceeding on September 9, 1939, show that his creditors largely consisted of those who ordinarily furnished goods and services to a cafe or restaurant owner, such as milk dealers, etc.
A minor controversy is whether or not a portion of the fixtures covered by the chattel mortgage were not strictly fixtures of a cafe or restaurant owner and, therefore, were not subject to the provisions of Section 3440, Civ.Code. But there is nothing in the record to indicate this, other than the mere statement of counsel for the respondent mortgagee. The respondent mortgagee has not in the record on review set forth any substantial basis upon which the Judge could make an order in this respect. The Referee's...
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