In re Butterwick

• Decision Date: 29 June 1904
• Docket Number: 410.
• Citation: 131 F. 371
• Parties: In re Butterwick.
• Court: U.S. District Court — Middle District of Pennsylvania

131 F. 371

In re Butterwick.

No. 410.

United States District Court, M.D. Pennsylvania.

June 29, 1904

Edward S. Gearhart, for Grand Rapids Show Case Co., claimants.

Charles M. Clement, for trustee.

ARCHBALD District Judge.

In the possession of the bankrupt at the time of filing his petition were four show cases, now in the hands of the trustee, which were obtained from the Grand Rapids Show Case Company, and are claimed by them as their property. These goods were ordered by the bankrupt of that company October 9, 1903 after the usual business solicitation on their part, the price being fixed at $210. A few days later, and before the order was filled, the following agreement was executed by the bankrupt:

'As per our order of October 9 given the Grand Rapids Show Case Co. of Grand Rapids, Mich., for show cases I hereby agree that the title to the said furniture shall be theirs until the full amount of purchase price has been paid.

'Oct 14, 1903. N. H. Butterwick.'

The goods were shipped November 28th upon the following invoice:

"Grand Rapids, Mich., 11/28/03.

"Grand Rapids Show Case Co.

"Sold to Mr. N. H. Butterwick, Danville, Pa.

"4-6 ft. 60 Display Cases 28 1/4" wide, 1 PC. Bevel Tops......

"1 PC. Sheet Fronts, Mirror Doors, 4 Electric Reflectors ...... $210 00

"Terms: 1/2 Jan. 1 1/4 Jan. 20 1/4 Feb. 10."

The terms given in the invoice were so fixed as to enable the bankrupt to pay out of the holiday trade; but before a single remittance had been made, on January 2, 1904, he went into voluntary bankruptcy, leaving the Show Case Company in the lurch. The question is whether they or the trustee is entitled to the goods.

By section 70 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565, 566 (U.S.Comp.St. 1901, p. 3451)) the trustee is vested by operation of law with the title of the bankrupt as of the date when he was adjudged a bankrupt to all '(5) property which, prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him. ' That is to say, the trustee does not stand simply in the shoes of the bankrupt, but is invested with the rights of his execution creditors; and the question in the present instance therefore is whether the show cases which are sought to be reclaimed could have been successfully subjected, while in the hands of the bankrupt, to levy and sale upon execution against him. This is to be determined by the local law (Hewit v. Berlin Machine Works, 194 U.S. 296, 24 Sup.Ct. 690, 48 L.Ed. 986), with regard to which, as applied to this case, there can be no doubt. The show cases were furnished to the bankrupt at a specified price and on definite terms of payment, and the agreement, in the face of this, that title should not pass until they were paid for, was...