279 F. 530 | 2d Cir. | 1922
(after stating the facts as above). The master’s comprehensive and clear opinion discusses fully the essential questions of the case, and thus it is necessary for us only to point out the main features on which decision is based. Shovah contends that, when he delivered his note and the cash on January 5, 1921, pursuant to the agreement of the same date, he made payment of his contract obligation. It is elementary that whether or hot payment has been made depends upon the intent of the parties. The transaction here clearly negatived payment. Matton was at all times to retain title until the note was fully paid. Until the boat was complete, insurance proceeds in the event of loss were to be paid to Matton to reconstruct the boat. If the boat were completed and delivered, then, if any balance of the “purchase price or contract price” remained unpaid, Matton was to be the beneficiary of the insurance policy to the extent of the balance due him. Further, Matton was to hold title until the full contract price was paid. The modification agreed on in the writing of February 18, 1921, serves to confirm this view. Instead of paying the note in full on May 8th, contemporaneously with the date fixed for the delivery of a completed hoat, Shovah was to have the
Thus, if Matton had been able to deliver the boat on May 8, 1921, he was still to retain title until Shovah paid the full contract price. It is plain that the parties intended that, so long as any of the purchase price remained unpaid, Matton should have the security of the title remaining in him, even though possession of the boat would be with Shovah, had the boat been completed and delivered as per the contract. Such an arrangement is wholly inconsistent with payment.
Payment is usually accompanied with absolute delivery; the person delivering the res being willing to look to something else than the res for the payment of the debt. If, on May 8, 1921, Matton had delivered the boat under the agreement of February 18, Shovah would not have owned the boat free and clear of incumbrance. As between him and Matton, it may he that then equity would have declared him a mortgagor or a pledgor (we need not stop to inquire which) in possession and Matton a mortgagee to the extent of any unpaid balance of the contract price. The principle is well stated in 27 Cyc. 991 et seq., in respect of real estate mortgages and is applicable to chattel mortgages. Other questions might arise, if the rights of'creditors were involved. Shovah, in now asking, inter alia, for equitable relief, does not realize that the present situation is different from what may have been the case, if the boat had been delivered prior to May 14, the date of filing the petition in bankruptcy.
Assuming, then, as we must, that the execution and delivery of the note in January did not constitute payment and that the boat was not completed nor delivered prior to May 14, the next inquiry is as to the title and rights of the trustee in bankruptcy. Under section 47a (2) of the Bankruptcy Act (Comp. St. § 9631), a trustee takes the status of a creditor such as described in the statute “as of the time when the petition in bankruptcy is filed.” Bailey v. Baker Ice Machine Co., 239 U. S. 268, 276, 36 Sup. Ct. 50, 60 L. Ed. 275; In re Morris, 204 Fed. 770, 123 C. C. A. 220; Millikin v. Second Nat. Bank, 206 Fed. 14, 16, 124 C. C. A. 148. As of May 14, the legal title was in Matton, and hence in the trustee. Possession of certain property necessary for, but not yet making up, a completed boat, was in Matton, and hence in the trustee. On that day the trustee was in the position of a creditor “armed with process.”
There was no lien, equitable or otherwise, in favor of Shovah, because he and Matton had not so agreed, and the only title or lien (whichever way it may be put) which Shovah was to have under the agreement would spring into existence only upon delivery of the boat. Deeley v. Dwight, 132 N. Y. 59, 64, 30 N. E. 258, 18 L. R. A. 298. The transaction between Matton and Nealor does not in any manner affect the title of the trustee, nor give Nealor any interest in the boat or the proceeds derived from the sale thereof. It will be noted that what Matton transferred was, not his title to and in the boat, but all his right, title, and interest in and to “any claim which he might have against the boat.” The intention, as stated by the parties, was to
It is apparent that this was but another way of saying that Nealor was to have Matton’s ■ claim against Shovah, if any balance was unpaid by Shovah. The record fails to disclose that'on May 14, there was any balance due from Shovah. Shovah’s original note presumably became due on May 8 and Nealor had bought that note from Mat-ton, and consequently Matton thereafter was not the owner or the holder of the note, and could not enforce any claim in respect thereof, unless he had been called upon to respond ss an indorser. However, as recited, supra, in the master’s seventeenth finding, there is no evidence that the note was returned to Matton or that he has been charged as an indorser in respect thereof.
At the time that Matton and Nealor entered into the agreement of February 1, there was no boat in existence legal title to which Mat-ton could transfer to Nealor (Deeley v. Dwight, supra), and this accounts for the language in the agreement as to transferring right, title, and interest in and to any “claim” which Matton might have against the boat. As against creditors, the agreement of February 1, 1921, unaccompanied with possession of a completed boat was ineffective to transfer title. When Nealor bought Shovah’s note from Matton, he did not thereby pay Matton for the boat. Nealor would still have recourse against Matton as indorser. Thus nothing occurred up to May 14, from any aspect, whereby Matton lost title.
We find it unnecessary to discuss at length Hurley v. Atchison, Topeka & Santa Fe Ry. Co., 213 U. S. 126, 29 Sup. Ct. 466, 53 L. Ed. 729, for the reason that in that case the railway company paid in advance and the essential facts which influenced the decision are not analogous with those in the case at bar. As Nealor is not a party to the proceedings, we go no further than to say that the transaction between him and Matton does not in any way change the status of the trustee, as the owner of the boat who is entitled to any fund which may have been produced by its sale.
The order of the District Court is affirmed, with costs.