Cincinnati Ry. Supply Co. v. Hartlieb

214 F. 177 | 6th Cir. | 1914

PER CURIAM.

Appellant sought through intervention to recover certain copper and tin metal which it had delivered to the bankrupt between February 1 and 21, 1911, and the money equivalent for any that had been sold. The grounds for recovery stated were that the terms of sale were cash on delivery; that, the bankrupt having failed to pay any portion of the purchase price, appellant, after demand and refusal to return the property, had on June 29, 1911, instituted proceedings in replevin, but during pendency of the action, July 24, 1911, bankruptcy proceedings were begun against the debtor, receivers appointed, and the intervener was enjoined from further prosecution of its action. The defenses were that demand for return of the metal was not made until after it had been manufactured into castings; that neither the metal nor the castings could be identified; and that the inter-vener had waived compliance with the terms of sale. This the inter-vener in substance denied, and alleged that the bankrupt, knowing that by reason of nonpayment it had no title under the terms of sale, converted the property to its own use shortly after delivery, and that, through repeated representations of its ability and inclination to pay, had caused intervener to delay commencement of proceedings to recover the property.

The referee to whom the cause was submitted heard the testimony and made findings in substance as follows: Amount claimed was- correct, and terms 'of sale were cash on delivery. Most, if not all, of the metal was used in the casting of small parts of bankrupt’s products during February, the month of delivery, certainly within 60 days thereafter and before demand was made for its return. It was impossible to tell whether or not any of these parts were still on hand; nor could they be traced into any particular account, or their proceeds into any particular fund. Soon after the first shipment, and at frequent later intervals, intervener urged payment of the amount due, but was put off with promises. No demand was ever made for return of the goods until June 29, 1911, when the sheriff of Montgomery county undertook to execute a writ of replevin issued at the suit of intervener; but, after seizing certain copper, he released it upon learning that it was not the copper in question, and returned the writ indorsed “goods not found in my county.” In previous dealings between these parties in respect of sales on similar terms, payments were not made until the lapse of some 30 days after the respective deliveries. It had been the practice of bankrupt not to order such metals in advance of its needs, and intervener must have known that the metal in question would be quickly converted into castings.

After carefully considering the facts and making his findings, the referee delivered a creditable opinion denying relief. Judge Hollister, upon review, confirmed the findings and order of the referee in an opinion which meets with our approval. His opinion appears herewith, and the order so entered and sustained below is affirmed, with costs.