In re Poore

• Decision Date: 04 August 1905
• Docket Number: 667.
• Citation: 139 F. 862
• Parties: In re POORE.
• Court: U.S. District Court — Middle District of Pennsylvania

139 F. 862

In re POORE.

No. 667.

United States District Court, M.D. Pennsylvania.

August 4, 1905

W. W Baylor, for petitioner.

F. K Tracy, for trustee.

ARCHBALD District Judge.

The petitioners ask for an order on the trustee to turn over a safe delivered by them to the bankrupt upon the following writing:

'Scranton 7/21 1904.

'Cary Safe Co.

'Buffalo, N.Y.

'Please send as soon as convenient, one No. 26 Fire Proof Safe, approximate size inside, 40 inches high, 32 inches wide, 15 inches deep, as per illustrated catalogue, or plan on back hereof, if any, necessary alterations allowed. Ship via . . . from Buffalo N.Y., and rent same to undersigned on following terms, F.O.B. my office, notes $125 and my O(ld) S(afe) as follows: $25 and my O.S. on arrival of safe, balance in 3, 6, 9, and 12 months. Subject to approval (of) Cary Safe Co. The above mentioned safe is now at St. Mary's, Pa., and was formally (formerly) sold to Parsons & Son.

'It is agreed (that the) above sums are to be paid as rent for said safe. When the full amount of $25 and O.S. is paid, you are to give me a bill of sale of safe. If note is not forwarded to you at the expiration of twenty-five days from date of invoice all rent shall become due at the expiration of thirty-days from date of bill, and (I) agree to accept and pay draft of amount mentioned below, and am not to countermand or attempt to annul this contract. It is agreed that the title of said safe shall not pass until notes are paid, or safe paid for in cash, but shall remain your property until that time. In default of payment of said rent, you or your agent may take possession of and remove said safe without legal process; all claims for damages arising from such removal being hereby waived. You are to retain any payments made for use of safe. Nothing but shipment or delivery constitutes an acceptance of this contract. It is also hereby expressly agreed and understood that the foregoing embodies all the agreements made between us in any way, hereby waiving all claims of verbal or other agreements of any nature not embodies in this contract. The receipt of a duplicate hereof if hereby acknowledged.

'AGENTS NOT AUTHORIZED TO MAKE COLLECTIONS.

'Amount $125 and O.S.

'Truly yours,

J. B. Poore.'

The old safe called for by this paper was delivered, and the first three payments of $25 each were made, leaving $50 due at the time of bankruptcy. Just prior to that an agent of the petitioners called on the bankrupt, and asked for the safe, but it was not turned over to him, although, as it is claimed, it was promised.

Taking the writing, which was executed by the bankrupt, as defining the rights of the parties, the question is as to its legal effect; that is to say, whether it is to be treated as a bailment or a conditional sale. This...