In re Gross Mfg. & Importing Co.
Decision Date | 16 July 1971 |
Docket Number | No. B.803-68.,B.803-68. |
Citation | 328 F. Supp. 905 |
Parties | In the Matter of GROSS MFG. & IMPORTING CO., Inc., a corporation of the State of New Jersey, Bankrupt. |
Court | U.S. District Court — District of New Jersey |
Arthur H. Miller, New Brunswick, N. J., for claimant.
This matter is before the Court on petition of the Trustee in Bankruptcy for review of an order of the Referee, filed on August 4, 1970, which allowed the proof of claim of Estey Musical Instrument Corporation, the major creditor (hereinafter Estey), for $50,473.28 and dismissed the objections of the bankrupt, Gross Mfg. & Importing Co., Inc. (hereinafter the bankrupt or Gross), thereto as well as dismissing the Trustee's counterclaim for $26,049.93, based on certain inventory of the bankrupt which was alleged to have been fraudulently or preferentially returned to Estey. A hearing to review the Referee's order was held before this Court. Decision was reserved to permit the Court to consider certain evidence in the form of invoices which were before the Referee but inadvertently not offered in evidence.
The briefs, supplemental briefs, transcripts and exhibits have been carefully examined in light of General Order 47, which provides that:
Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.
This Order was considered in In re Steiker, 380 F.2d 765, 767-768 (3 Cir. 1967), wherein it was observed:
We recently noted in In re Rubin, 378 F.2d 104 (C.A. 3, 1967), that the mandate of General Order 47 precludes this court as well as the district court from not accepting the referee's basic findings of fact. See In re Wolf, 165 F.2d 707, 709-710 (C.A. 3, 1948). Though ultimate findings are subject to appellate scrutiny free of the "clearly erroneous" rule, as was noted above, those findings should be undisturbed where they are supported by the underlying factual determinations which cumulatively satisfy the applicable standard of proof.
Cf. In re Pioch, 235 F.2d 903 (3 Cir. 1956), wherein it was held that there was insufficient proof for the Referee's decision on the ultimate finding. See also 2 Collier, Bankruptcy, § 39.28 (14th Ed. 1970). Of course, the Court is not restricted by General Order 47 in relating the Referee's findings of fact to the ultimate conclusions of law.
The bankrupt was "* * * in the business of wholesale dealing in musical instrument supplies and related products * * * for approximately forty-six years." It filed a Petition for an Arrangement under Chapter XI on May 28, 1968. However, Gross was adjudicated a bankrupt on December 3, 1968, because of "* * * having failed to proceed with the plan." During its long existence Gross dealt as a distributor for, among others, a sequence of supplier entities which used variations of the name "Estey", but only the "Estey" corporation which commenced dealings with the bankrupt after mid-1967 is the creditor herein involved. Any testimony about a course of conduct between the bankrupt and any other "Estey" must be scrutinized in light of which entity was conducting business at that time.* The creditor herein was formed on July 14, 1967. At that point no debts were owed to the new Estey. Its dealings with Gross were subsequently conducted in light of the prior trade difficulties with the predecessor Estey companies and Gross's deteriorating reputation. Just prior to the time that Messrs. Green and Knazick formed the new Estey, Green had heard from Mr. Wolf, then secretary-treasurer and Vice-president of the bankrupt, that "* * * the condition of Gross Manufacturing was very bad."
On August 1, 1967 (within the first two weeks of business between Estey and the bankrupt), Mr. Wolf acting as secretary-treasurer and executive vice-president of the bankrupt, and Mr. Knazick, as executive vice-president of Estey, executed a consignment agreement for the protection of Estey. It was stipulated that no financing statement was executed or filed pursuant to the Uniform Commercial Code. Estey also required personal notes from Mr. Wolf upon delivery of merchandise to the bankrupt and billed Gross for the merchandise as well. Sixty-seven duplicate invoice forms were submitted to this Court and were marked in evidence without objection as they had been used but not marked during the Referee's hearing. Those invoices as well as notes signed by Mr. Wolf and an accounts receivable ledger indicate the nature of the course of dealing between the bankrupt and Estey, which was pursued in addition to the consignment agreement, and give the appearance of creating a debtor-creditor relationship, as well as that of consignor-consignee. The terms of the consignment agreement itself bear upon the ostensible method of dealing. The body of the consignment agreement is as follows:
Between August 1, 1967, and sometime in April, 1968, business was conducted between the two parties as indicated by the invoices. In April 1968 (the exact date is unclear), Gross returned to Estey merchandise with an invoice value of $26,049.93 either for repairs or for return under the consignment agreement. The Petition for Arrangement was filed on May 28, 1968. Estey issued a credit memorandum for the returned goods dated June 3, 1968. The delay in issuing the memorandum was alleged to be due to the fact that the goods had to be inspected so that deductions could be made for return freight, repair, handling, and repackaging under the terms of the consignment agreement. (An exhibit in evidence reflects a $6,289.89 charge including estimated repair costs.)
The Referee made the following findings of fact:
Based on the foregoing findings of fact, the Referee made the following conclusions of law:
Even if the Referee's findings of fact are not "clearly erroneous" it still remains for the Court to determine the soundness of the legal conclusions reached.
The legal effect of the consignment agreement must be viewed in light of the change in the law brought about by §...
To continue reading
Request your trial-
In re Zwagerman, Bankruptcy No. NG 85-02901
...(3d Cir.1985); W.N. Provenzano, Inc. v. Monahan & Co., 36 U.C.C. Rep.Serv. (Callaghan) 1601 (D.Mass.1983); In re Gross Mfg. & Importing Co., Inc., 328 F.Supp. 905 (D.N.J.1971); Scott v. Almiro Fur Fashion Design (In re Fisher), 100 B.R. 351 (Bankr.S.D. Ohio 1989), modified, 101 B.R. 507 (Ba......
-
In re Mid-Center Redevelopment Corp.
...by the underlying factual determinations which cumulatively satisfy the applicable standard of proof. . . ."); In re Gross Mfg. & Importing Co., 328 F.Supp. 905, 906 (D.N.J.1971); In re Calpa Products Co., 249 F.Supp. 71, 73 (E.D.Pa.), aff'd, 354 F.2d 1002 (3d Cir. 1965), cert. denied, 383 ......
-
In re Alper-Richman Furs, Ltd., Bankruptcy No. 89 B 05933
...misled by a secret reservation of title by the consignor. Official Comment to § 2-326 at ¶ 2; see also In re Gross Manufacturing and Importing Co., Inc., 328 F.Supp. 905, 909 (D.N.J.1971). To hold that a creditor of the consignee not in fact so misled could prevail would be contrary to the ......
-
In re Ide Jewelry Co., Inc.
...support the notion that a consignment was intended as security include: (i) setting of price by the consignee, see In re Gross Mfg. & Importing Co., 328 F.Supp. 905, 913, 9 U.C.C. Rep.Serv. (Callaghan) 355, 366 (D.N.J.1971); In re De'Cor Wallcovering Studios, Inc., 8 U.C.C. Rep. Serv. (Call......