Meier & Frank Co. v. Sabin

• Decision Date: 25 May 1914
• Docket Number: 2369.
• Citation: 214 F. 231
• Parties: MEIER & FRANK CO. v. SABIN.
• Court: U.S. Court of Appeals — Ninth Circuit

214 F. 231

MEIER & FRANK CO. v. SABIN.

No. 2369.

United States Court of Appeals, Ninth Circuit.

May 25, 1914

Joseph & Haney and B. H. Goldstein, all of Portland, Or., for appellant.

Sidney Teiser, of Portland, Or., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is a bill to determine the rights of the appellant to certain personal property in the possession of the appellee as trustee in bankruptcy of the Italian Restaurant Company, a corporation, which, previous to its bankruptcy, had been conducting the business of a restaurant in the city of Portland, state of Oregon. In disposing of the assets of the bankrupt corporation by the trustee, the appellant interposed an adverse claim to certain property in the possession of the trustee. The matter came before the referee in bankruptcy and a hearing was had, but the appellant filed no reclamation petition, and upon a ruling by the referee that the title had passed, and that there was no conditional contract of sale out against the property, he directed the trustee to sell it. Thereupon the appellant brought suit against the trustee in the state court to recover the property. In the lower court the trustee claimed that, by the proceedings before the referee, the question of appellant's claim of title to the property had become res judicata. The court held that the evidence was not sufficient to establish such a judgment. As no appeal was taken from this feature of the court's judgment, that question is not before this court.

The property in controversy consists of furnishings, furniture crockery, utensils, and other articles used in a restaurant. Appellant's claim of title was based originally upon a written agreement, dated November 26, 1912, wherein the appellant, as seller, agreed for the consideration of $1,500 to sell and transfer to the Italian Restaurant Company certain personal property described in a list which it was recited in the agreement was attached and marked Exhibit A. It was provided in the agreement that $750 of the consideration should be paid upon the execution and delivery of the contract, and the balance in monthly payments of $100 and that the title to the property should remain in the seller until each and all of the payments mentioned should have been made by the purchaser. The sale, if valid, was a conditional sale, but no list or exhibit of the property was attached to the agreement, nor was the property otherwise identified in the written agreement. There is evidence tending to prove that it was not the intention of the parties to attach a list to this contract, but that the contract should cover such goods as might be bought by the restaurant company from Meier & Frank Company in furnishing and fitting up the restaurant. There is also evidence that the total value of the goods and merchandise sold and delivered to the restaurant company amounted to $3,129.33, and that payments on the account had been made amounting to $1,564.60. The court below found the identification of the property was too indefinite and uncertain to constitute a conditional sale of any property in the possession of the trustee.

There is no statutory provision in the state of Oregon requiring the filing or recording of conditional sales; nor are they required to be in writing. If otherwise valid under the statute of frauds, they may be verbal; but there is no relaxation of the rule requiring certainty in the terms and subject of the contract. Gregory v. North Pacific Lumber Co., 15 Or. 447, 452, 17 P. 143; Lee v. Cole, 17 Or. 559, 561, 21 P. 819; Flanagan Bank v. Graham, 42 Or. 403, 418, 71 P. 137, 790; Ayre v. Hixson, 53 Or. 19, 31, 98 P. 515,...