Robbins v. Bostian

• Decision Date: 09 November 1943
• Docket Number: No. 12419.,12419.
• Citation: 138 F.2d 622
• Parties: ROBBINS v. BOSTIAN.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 622 (1943)

ROBBINS v. BOSTIAN.

No. 12419.

Circuit Court of Appeals, Eighth Circuit.

November 9, 1943.

J. W. House and D. D. Panich, both of Little Rock, Ark., for appellant.

Frank P. Barker, of Kansas City, Mo. (Winger, Reeder & Barker, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order of the trial court which sustained an order of a referee in bankruptcy denying the claim of appellant to possession of a rock crusher.

The claim of appellant is bottomed on a conditional sales contract executed in Arkansas, where the property was located at the time of its execution, between himself, a resident of Arkansas, and the bankrupt, a corporation with its principal place of business in Kansas City, Missouri. The contract in form reserved title in appellant, the vendor.

Following the sale the property was removed to Nebraska. In Arkansas the contract was valid as between the parties thereto and as against creditors or subsequent purchasers without the necessity of filing or recording it. Appellant did not file his conditional sales contract in Nebraska, nor did he make any attempt to comply with the Nebraska statute (Sec. 36-208, C.S.Supp.1941), which provides that, "No sale, contract or lease, wherein the transfer of the title or ownership of personal property, except motor vehicles, is made to depend upon any condition, shall be valid against any purchaser, judgment creditor or mortgagee of the vendee or lessee in actual possession, obtained in pursuance of such sale, contract or lease without notice, unless the same be in writing, signed by the vendee or lessee, and said contract or a copy thereof filed in the office of the clerk of the county within which such vendee or lessee resides: * * *."

The contract was entered into June 3, 1941, and within fifteen days thereafter the vendee removed the crusher to the State of Nebraska where it remained in its possession until it came into the custody of the bankruptcy court on January 22, 1942. The referee in bankruptcy made certain findings on the issue of removal, consent of the vendor, and other pertinent questions. These are found in three separate documents. In his "Opinion and Findings" he found that at the time of sale appellant was told that the vendee had jobs in Missouri and Nebraska and that it was contemplating a large job near Blue Mountain, Arkansas. He found further that,

"At that time (the time of sale) O. B. Robbins, the seller, thought that the crusher was going to be used in the State of Arkansas, but there was no agreement or understanding between the parties that the crusher was not to be taken out of the State of Arkansas.

"The bankrupt in good faith thought that it had the right to move the crusher out of that State and shortly thereafter did move it to the site of the bankrupt's job near Table Rock, Nebraska.

"O. B. Robbins, the seller, definitely learned that the crusher was in Nebraska. This occurred about the time the first payment on the contract became due which was August 1, 1941.

* * * * * *

"The crusher remained at Table Rock, Nebraska, from the time it arrived in June, 1941, until January 22, 1942, when the Peairs-Lynch Stone Company was duly adjudicated a bankrupt. At that time the Receiver in Bankruptcy took possession of the crusher and later sold it for the sum of $12,000.00 with the understanding that the lien, if any, to O. B. Robbins, was to attach to and follow the proceeds of sale.

"Thus O. B. Robbins knowingly acquiesced in the removal of the crusher to Table Rock, Nebraska, from and after August 1, 1941, and he did not file his conditional sales contract in that state, even though he had ample time to do so. The bankruptcy proceedings of the Peairs-Lynch Stone Company were commenced on January 22, 1942, more than five months after Mr. Robbins learned about the removal to the State of Nebraska."

In his order denying the claim of appellant the referee recited: "That at the time of said sale the removal of said crusher and its use by the bankrupt for the crushing of stone on a highway construction job near Table Rock, Pawnee County, Nebraska, was contemplated by the parties, and that in the month of June, 1941, the bankrupt with the consent of the intervener moved said crusher from Arkansas to Table Rock, Nebraska, and there, on or about July 20, 1941, began its highway construction job and the use of said crusher; that said crusher remained in Nebraska in the possession of the bankrupt until the filing of the petition and adjudication in bankruptcy therein on January 22, 1942, and thereafter came into the possession of the trustee in bankruptcy * * *."

In his certificate on review the referee apparently made further findings as follows:

"At the time of the sale, the bankrupt considered the removal of the crusher from Arkansas to its job in Nebraska, and the intervener (appellant) later on impliedly consented to such removal and use.

"Although the crusher remained in Nebraska for more than five months after intervener (appellant) had knowledge of the removal, he took no steps to record his contract in that state nor elsewhere."

The trial court in affirming the order of the referee holding the lien of appellant invalid against the trustee in bankruptcy, recited some of the facts found by the referee without expressly holding that the referee had found a prior consent to removal. The court said: "Moreover, there was no substantial dispute on any facts save as to the date when the intervener learned that the property had been moved to Nebraska. In the view hereinafter expressed this seems immaterial for the reason that the property was in Nebraska several months before bankruptcy intervened and after the vendor knew of its removal."

In its order the court found that, "The intervener (appellant) had notice of the removal of the property covered by his conditional sales contract into the State of Nebraska and thereafter failed and neglected to record said contract as required by the laws of Nebraska * * *."

The appeal has been twice considered. Following its first presentation and submission we handed down an opinion expressing the view that on the record the lien created by the conditional sales contract and confessedly good in Arkansas, where the property was located at the time of the execution of the contract, had not been lost by the removal to the State of Nebraska; that there was no finding to the effect that at the time of the execution of the contract the parties intended that the property should be removed to another state and no evidence to sustain such contention, and that the removal resulted only in a temporary situs of the property in Nebraska. We therefore reversed the judgment appealed from. Robbins v. Bostian, Trustee, 8 Cir., 135 F.2d 298. On petition for rehearing the views we had expressed with reference to the laws of Nebraska and the purport and effect of the findings of the referee were vigorously challenged, and after careful consideration we granted a rehearing, vacated our judgment theretofore entered and restored the cause to the docket permitting the parties to file additional or supplemental briefs. The parties have accordingly filed very exhaustive supplemental briefs and the case has been resubmitted and is again before us for disposition.

Appellant places great stress upon the findings of the referee. It is true that there are certain statements in these findings which if sustained by the evidence would require us to accept as a fact that the crusher was removed from Arkansas to Nebraska "with the consent of the intervener;" also that the removal was "contemplated by the parties." These expressions, however, are inconsistent with the finding that appellant thought the crusher was going to be used in the State or Arkansas and with the finding that he learned on August 1, 1941 that the crusher was in Nebraska, and with the finding that he knowingly acquiesced in the removal "from and after August 1, 1941." It is observed too that the referee found that appellant, after the removal of the crusher, impliedly consented to such removal and that "although the crusher remained in Nebraska for more than five months after intervener had knowledge of the removal, he took no steps to record his contract." These recitals are inconsistent with a finding that appellant consented to the removal or that the removal was contemplated at the time of the execution of the contract.

We have examined the testimony of witnesses on this question of consent to removal, and we are clear that there is no evidence that appellant consented to the removal of the property prior to its removal to Nebraska. The most that can be said with reference to the record in this regard is that it shows that after the property was removed appellant learned that it had been moved to the State of Nebraska and was there being used, and that notwithstanding this knowledge, which he acquired some five months before petition in bankruptcy was filed, he did nothing toward complying with the Nebraska statute relative to the filing of his conditional sales contract. This failure to act after knowledge seems to have been the basis of the decision of the trial court. If the court was correct in this view, then we need not concern ourselves with whether appellant gave prior consent to the removal of the property, nor, indeed, whether the property acquired only a temporary situs in that state. In passing it may...