In re Merz
Decision Date | 13 January 1930 |
Docket Number | No. 103.,103. |
Citation | 37 F.2d 1 |
Parties | In re MERZ. DEGENER et al. v. BOYD. |
Court | U.S. Court of Appeals — Second Circuit |
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Spencer, Ordway & Wierum, of New York City (Otto C. Wierum, of New York City, of counsel), for appellants.
David W. Kahn, of New York City, for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
Auffmordt & Co. contend (a) that they were at all times in possession of the merchandise upon which Merz had agreed to give a lien; (b) that, even if the possession was in Merz, such possession was in the latter as agent for Auffmordt; (c) that the trustee in bankruptcy is not entitled to challenge the validity of the lien; (d) that Auffmordt in any event had obtained an equitable lien.
The real difficulty with the claim that Auffmordt had possession is that they had no power to exclude Merz. They did not hold the lease of the premises where the goods were stored, and they had no key to the premises. The signs on the floors where the merchandise was placed were those of Merz. No one going there to purchase goods would have had reasonable notice that Auffmordt had any interest in the premises. In Ommen v. Talcott, 188 F. 401, 404, we held that there was not ostensible possession sufficient to support a lien, even though the lease was assigned to the factor and the sales were made in his name. We characterized that transaction as
In the later case of Boise v. Talcott, 264 F. 61, 63, we sustained the claim of the factor. But there the lease was assigned to the latter and the rent paid by him, a notice was placed in the office that "no goods are to be shipped from these premises by any one except the representative of James Talcott," written notice that Talcott was acting as banker was given to the customers, and management and conduct of the business was cared for by his representative, who was constantly at the place of businesss. At the entrance to the left was a large sign reading, "James Talcott Factor for Daly & Schaefer," and in the office nearest the entrance was a table, where Talcott's representative sat, with a sign on it reading "James Talcott." There was also evidence that the representative had a key, and opened and closed the premises. Moreover, the agreement between the parties provided that Daly & Schaefer should consign to Talcott all goods then owned and thereafter purchased by them, and that Talcott should have exclusive supervision and control of all such goods, which should be in the exclusive possession of said Talcott as factor and that all sales should be made by him.
In the case of In re Spanish-American Cork Products Co. (C. C. A.) 2 F.(2d) 203, 204, a bankrupt, who was a manufacturer of cork products, undertook to pledge certain of its materials in stock to a bank as security for loans. The property was placed in rooms in the bankrupt's plant nominally leased to an employee of the bankrupt, who, and a watchman, alone had keys to the rooms. Under instructions from the bank, the employee placarded the doors with signs: Judge Woods, who wrote the opinion for the Circuit Court of Appeals of the Fourth Circuit, said:
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