299 F. 789 | S.D. Miss. | 1924
The facts are undisputed. The Naval Stores Equipment Company, a Louisiana corporation, domiciled at New Orleans and engaged in the business of manufacturing and selling at wholesale paints and varnishes, sold to S. P. Cagle, the bankrupt, a merchant and trader engaged in the retail trade at Jackson, Miss., the goods in controversy consisting of paints and varnishes. The goods were purchased by Cagle either through a traveling salesman of the claimant or by order sent by mail direct to the claimant at New Orleans. They were purchased f. o. b. New Orleans, and were to be shipped over the Illinois Central Railroad to the bankrupt at Jackson, Miss. The bankrupt was to pay the freight, and it was expressly stipulated that delivery to the railroad company was to be delivery to the, bankrupt, and that the responsibility of the seller ceased upon the delivery of the goods to the carrier at the point of shipment.
The seller claims a lien under section 3079 of the Mississippi Code of 1906, which reads as follows:
“The vendor of personal property shall have a lien thereon for the purchase money while it remains in the hands of the first purchaser, or of one deriving title or possession through him, with notice that the purchase money was unpaid.”
The seller further claims that such alleged lien was preserved in bankruptcy under section 67d of the Bankruptcy Act (Comp. St. § 9651), which is as follows:
“(d) Liens given or accepted in good faith and not in contemplation of or in fraud upon this Act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall, to the extent of such present consideration only, not be affected by this act.”
The contract being consummated in New Orleans, and the goods being delivered there to the railroad as the agent of the purchaser, the contract was a Louisiana contract, and the lex loci contractus governs. The Mississippi purchase-money lien statute, having no extraterritorial effect, could not impress a lien for the purchase money upon this property at the time of the consummation of the sale by a delivery thereof to the agent of the purchaser. The entire reliance of the seller is for a purchase-money lien under the Missisippi statute.
Under these facts, I am of the opinion that the decision of the referee was correct, and should be sustained.
