In re Harrington

• Decision Date: 03 January 1914
• Docket Number: 19,018.
• Citation: 212 F. 542
• Parties: In re HARRINGTON et al.
• Court: U.S. District Court — District of Massachusetts

212 F. 542

In re HARRINGTON et al.

No. 19,018.

United States District Court, D. Massachusetts.

January 3, 1914

Carver & Carver, of Boston, Mass., for petitioners.

George W. Reed, of Boston, trustee, pro se.

MORTON District Judge.

This is a petition to review an order entered by the referee dismissing a petition of the Flanders Motor Company of Detroit, Mich., as the successor of the Metzger Motor Car Company, for reclamation of certain automobile parts now in the possession of the trustee. The case was submitted on a short written statement of agreed facts, a further written statement of agreed facts, and certain documentary evidence therein referred to, including the contract in question and a letter from the claimant, and upon no other facts or evidence.

The property in dispute consists of a great number of parts of automobiles for use in 'Everitt' cars. At the time of the bankruptcy they were in the possession of the bankrupts commingled with other goods. They have since been separated by the trustee, and are held by him subject to these proceedings. The date of the bankruptcy was January 10, 1913. It is the contention of the claimant that the bankrupts did not own the parts in question, and that said parts had been delivered under a written agreement, by the terms of which the legal title remained in the claimant. The trustee contends that the sales to the bankrupts were absolute, and that the property in question is part of the bankrupt's estate.

The written agreement on which the claimant relies is, in substance, as follows: It was made on June 28, 1911, at Detroit, Mich., between the Metzger Company and the bankrupts. By the first clause the company (or 'manufacturer ') granted to the bankrupts (called the 'dealer') the sale of Everitt automobiles in all of the New England States except Connecticut, and agreed to sell said automobiles to the dealer at certain specified discounts from the catalogue prices. 'The above prices are all f.o.b. at factory, Detroit, Mich.' The fifth clause of the contract provides:

'The dealer shall, on orders for parts, be allowed 30% discount from the last list prices established by the manufacturer.'

The ninth clause provides:

'It is expressly understood and agreed that the title to each and every automobile and to all automobile parts furnished to said dealer, under the terms of this agreement, shall not pass to the dealer until same is fully paid for in full and cash.'

The twelfth clause provides that the dealer agrees to take not less than 500 cars 'of the types and on the dates as hereinafter indicated. ' So little, however, seems to have been thought of this provision that, although the months are stated, from July, 1911, to June, 1912, both dates inclusive, no numbers or totals were carried out. The agreement recites that the dealer has deposited with the manufacturer the sum of $3,000 to apply as a deposit on the cars ordered as above, and that:

'Said sum will be credited by the manufacturer to the dealer, and will be repaid when all the cars contracted for are delivered and paid for, except that any part or all of said deposit may, at the option of the manufacturer, be credited against any parts or open account due the manufacturer from the dealer.'

The dealer agrees inter alia to maintain the manufacturer's list prices, to keep a repository and repair station for satisfactory display, care, and repair of such automobiles, and that the deposit may be retained by the manufacturer as liquidated damages for the dealer's breach of the contract.

The contract expired by its own limitation on July 1, 1912, but it provided that:

'All orders accepted by the manufacturer and all sales made by the dealer after such termination of this contract shall be governed by the terms and conditions thereof.' It was further provided that the manufacturer should not

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