156 F. 597 | M.D. Penn. | 1907
It is difficult to give to a written
instrument a character which the transaction, which it purports to represent, does not inherently bear. While, therefore, it is easy enough to make an agreement speak as a lease or a bailment, where that was what was actually in the mind of the parties, where the fact is that the one desires to sell and the other to buy, the attempt to have the arrangement masquerade in writipg as something else is very, likely to fail. There are apt terms and provisions for the one, which are inapt and unadaptable for the other, and the result is a nondescript, the different parts of which defeat each other and make manifest the real purpose in view. And this is also often betrayed by the unusual little things which creep in, “the clausulse inconsuetas pointed to in Twyne’s Case, 3 Rep. 80, as the sure badges of that which they are intended to hide.” Taylor v. Taylor, 8 How. 183, 205, 12 L. Ed. 1040; In re Baxter (C. C. A.) 152 Fed. 137, 141. As experience teaches, such instruments are prompted by the desire on the part of the owner of the goods to have the benefit of a sale while escaping its responsibilities, retaining a hold on them so as to be secure of the price, without subjecting them to the claims of creditors by reason of having parted with the possession, although giving credit to the one obtaining them, in their eyes, as the apparent owner thereby. This is not the policy of the law, and there is no occasion for the courts to be astute in helping to get around it. On the contrary, the result cannot but be healthful where attempted evasions of it are brought to nought. This subject has been so often considered in this court that there is very little left to be said. In re Butterwick (D. C.) 12 Am. Bankr. Rep. 536, 131 Fed. 371; In re Tice (D. C.) 15 Am. Bankr. Rep. 97, 139 Fed. 52; In re Poore (D. C.) Id. 174, 139 Fed. 862; In re Wells (D. C.) Id. 419, 140 Fed. 752; In re Heckathorn (D. C.) 16 Am. Bankr. Rep. 467, 144 Fed. 499. The question is one of local law in which the decisions of the state courts control. Those in Pennsylvania are not all so clear or consistent as they might be. In re Tice (D. C.) 15 Am. Bankr. Rep. 97, 139 Fed. 52. And there are some no doubt in which the writing has been held to constitute a lease or bailment, which approach somewhat closely to the case in hand. Stiles v. Seaton, 200 Pa. 114, 49 Atl. 774; Miller v. Douglas, 32 Pa. Sup. Ct. 158. But as was observed in one of the latest, and as is applicable here, there is nothing about .the agreement relied upon that suggests a bailment, except the use of certain terms and expressions which are evidently
The agreement is a somewhat verbose affair, and starts out with styling one party the bailor and the other the bailee, reciting that the one delivers to the other, “on hire and on the terms and-conditions” thereinafter uamed, the goods and chattels enumerated in the schedules attached. These goods constituted the furniture in a certain hotel, known as the “Sinclair House,” at Pittston, Pa., of which the bankrupt took a five-year lease on the same Say. And “for the use and hire” of them he agreed to pay the sum of .$5,500, of which $1,500 was to be paid down on the execution of the agreement, June 20, 1905; $50 on April 3, 1906, and the same amount monthly thereafter until $600 had been paid; $75 on April 1, 1907, and the same amount monthly until $900 had been paid; and $104.16 on April 1, 1908, and the same amount monthly until $2,500 had been paid, together with interest, at the rate of 6 per cent, per annum, payable month by month, to be computed on the balance due on the date of the agreement up to April 1, 1906, and thereafter from April 1st to April 1st, on the unpaid balance, on each of such successive dates, no allowance or deductions to be made therefrom on account of the monthly installments of principal provided for meanwhile. In case of default in any such payments, the so-called bailor was to have the right to repossess herself of the goods and chattels without notice or other proceeding, except that she might sue out a writ of replevin; the so-called bailee agreeing to peaceably and promptly deliver them up to the bailor, who was to retain all money that had been paid. It was also expressly stipulated that, until the payments provided for had been made and a bill of sale given, the right of property should remain in the bailor, the bailee to-pay the insurance thereon. The bailee further agreed to protect the goods from needless use and injury, and not to remove them from the hotel nor part with their custody in any way without the written consent of the bailor, any attempt of the bailee to remove them working an immediate forfeiture thereof. Judgment was also confessed by the bailee for $4,000 (the balance due after making the down payment) with interest and costs, and a 5 per cent, attorney’s commission, waiving inquisition and exemption. And, upon the failure of the bailee to comply with the terms and conditions of the agreement, the entire balance unpaid was to become immediately due and payable, on affidavit of which judgment might be entered therefor. Finally, upon the faithful performance of all the covenants of the agreement, the bailor undertook to execute a bill of sale transferring to the bailee the ownership of the goods involved.
Notwithstanding the apparent stringency of this instrument, and the multitude of provisions by which its real purpose is overlaid, if not
The petition is dismissed.