67 So. 904 | Miss. | 1915
delivered the opinion of the court.
It appears from the record that the Decatur Hardware Company was doing a mercantile business at Decatur in this state. The business conducted by this company was, generally speaking, a retail hardware business. In this connection, the International Harvester Company, manufacturer of agricultural implements and oil engines, had constituted the Decatur Hardware Company its local agent, and in the regular course of business the harvester company had shipped its products to the hardware company to be sold under the terms of its agency contract. It appears that the hardware company conceived the idea that it could build up a trade in forty-five horse power traction engines manufactured by the harvester company. After considerable correspondence between the hardware company and the harvester company, one of these high power engines was shipped to the hardware company. We gather from the correspondence that the harvester company agreed to send an expert to Decatur to assist in demonstrating the en
It is contended by the harvester company that the engine in question was never the property of the hardware company; that it was shipped solely for the purposes of demonstration. It is contended by the trustee that the engine was “used or acquired” in the business of the hardware company, and, as to its creditors, it became liable for the debts of the bankrupt. In other words, the trustee claims that the ownership of the engine, so far as creditors are concerned, is fixed by section 4784, Code 1906. The hardware company had a place of business, a house, and had a sign over its doors which read, “Decatur Hardware Company.” The engine
Collier on Bankruptcy (10th Ed.), p. 1005, analyzing the provision of the bankrupt act above referred to, has this to say:
*140 “The test is simple and easily applied. Could the property in question have been (1) transferred by, or (2) levied on and sold under judicial process against the bankrupt? If so, it passes to the trustee; if not, it does not. . . . Whether or not the property prior to the filing of the petition, could have been levied upon and sold under judicial process against the bankrupt must be determined by the local law. ”
Under our statute this engine could have been “levied upon and sold under judicial process” against the hardware company.
Norris v. Trenholm, 209 Fed. 827, 126 C. C. A. 551, is cited against this view of the law. This was a case arising in this state, and was controlled by our laws. It will be noted, however, that section 4784, Code 1906, was not mentioned or considered by the court in its opinion. We feel sure that this statute was not invoked in that case. If it has been invoked, it is-inconceivable that the court would have decided the case without making any reference to the statute.
Reversed and judgment here for appellant.
Reversed.