In re Excel Stores, Inc., 179

• Decision Date: 11 February 1965
• Docket Number: No. 179,Dockets 28432,28433.,180,179
• Citation: 341 F.2d 961
• Parties: In the Matter of EXCEL STORES, INC. and Excel Enterprises, Inc., Bankrupts, National Cash Register Company, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

341 F.2d 961 (1965)

In the Matter of EXCEL STORES, INC. and Excel Enterprises, Inc., Bankrupts, National Cash Register Company, Petitioner-Appellant.

Nos. 179, 180, Dockets 28432, 28433.

United States Court of Appeals Second Circuit.

Argued November 18, 1964.

Decided February 11, 1965.

Ralph R. Rakosky, New London, Conn. (Michael E. Cronin, Jr. and Michael A. Rakosky, New London, Conn., on the brief), for trustee-appellee.

Charles Suisman, New London, Conn. (S. Joel Suisman and Suisman, Shapiro & Wool, New London, Conn., on the brief), for petitioner-appellant.

Before LUMBARD, Chief Judge, and MEDINA and MARSHALL, Circuit Judges.

MEDINA, Circuit Judge:

It was held below that the conditional sale contract between appellant National Cash Register Company and the bankrupt Excel Stores, Inc. was not a sufficient compliance with the requirements of the Uniform Commercial Code embodied in Section 42a-9-402 of the Connecticut General Statutes because not properly "signed." The defect is that the name "Excel Department Stores" was used instead of "Excel Stores, Inc." The critical question is whether this mistake was in the category of "minor errors which are not seriously misleading," Section 42a-9-402, subsection (5). We are of the opinion that this was a minor error, and not seriously misleading, and we reverse with a direction that appellant's reclamation petition be granted or such other relief be fashioned as is consistent with the present circumstances of the case and with this opinion.

In the village of Pawcatuck, in the town of Stonington, Connecticut, near the Rhode Island border, lies a Shopping Center where in 1961 there was a sort of department store. Under the same management and as part of a single venture Excel Stores, Inc., a Connecticut corporation, sold "toys, domestics and other miscellaneous" articles of merchandise, and Excel Enterprises, Inc., a Massachusetts corporation, conducted "discount sales of women's and children's wear." We were told on oral argument that the name "Excel" was prominently displayed outside the store.

In July of 1961 a National Cash Register Company salesman negotiated with Andrew F. Machado, the Treasurer of the duly organized corporation Excel Stores, Inc., a sale of six cash registers to Excel Stores, Inc. The contract of conditional sale then entered into was superseded on October 26, 1961 by another agreement providing for different terms of payment. It is with this second contract that we are concerned in this case.

The applicable provision of the Uniform Commercial Code, adopted by Connecticut and some 30 or more States, see Gilmore, Book Review, 73 Yale L.J. 1303, 1306 (1964), and in force in Connecticut on October 26, 1961, is as follows:

"(1) A financing statement is sufficient if it is signed by the debtor and the secured party, gives an address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types, or describing the items, of collateral. A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. When the financing statement covers crops growing or to be grown or goods which are or are to become fixtures, the statement must also contain a general description of the real estate concerned and the name of the record owner thereof. A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties."

No question is raised with respect to the filing of the contract of October 26, 1961, or compliance with the "formal requisites" thus set forth, except that the document is said not to be properly "signed."

The facts are simple and are not in dispute. Andrew F. Machado was in fact the Treasurer of Excel Stores, Inc., he intended to make and did make the purchase of the six cash registers on behalf of and as representing Excel Stores, Inc. and all the checks delivered from time to time in partial payment of the indebtedness to National Cash Register Company were checks of Excel Stores, Inc. But Machado inadvertently made the...