214 F. 231 | 9th Cir. | 1914
This is a bill to determine the rights of the appellant to certain personal property in the possession of the ap-
■The property in controversy consists of furnishings, furniture, crockery, utensils, and other articles used in a restaurant. Appellant’s 1 claim of title was based originally upon a written agreement, dated November 26, 1912, wherein the appellant, as seller, agreed for the consideration of $1,500 to sell and transfer to the Italian Restaurant ■Company certain personal property described in a list which it was recited in the agreement was attached and marked Exhibit A. It was provided in the agreement that $750 of the consideration should be paid upon the execution and delivery of the contract, and the balance ■in monthly payments of $100, and that the title to the property should remain in the seller until each and all of the payments- mentioned should have been made by the purchaser. The sale, if valid, was a conditional sale, but no list or exhibit of the property was attached to the agreement, nor was the property otherwise identified in the written agreement. There is evidence tending to prove that it was-not the intention of the parties to attach a list to this contract, but that the contract should cover such goods as might be bought by the restaurant company from Meier & Frank Company in furnishing and fitting up the restaurant. There is also evidence that the total value of the goods and merchandise sold and delivered to the restaurant company amounted to $3,129.33, and that payments on the account had been made amounting to $1,564.60. - The court below found the identification of'the property was too indefinite and uncertain to constitute a conditional sale of any property in the possession of the trustee.
As has already been stated, the written agreement recites that the property sold was described in the list attached and marked Exhibit A; but no list was attached, nor was the property otherwise identified in the agreement. As the agreement stands, it is therefore meaningless and without effect; but it is possible that the bankrupt might not be permitted to.make this objection if it were shown that the bankrupt had received the goods and had identified them by taking them into possession. But the trustee in bankruptcy, standing in the shoes of the bankrupt, with all the rights, remedies, and powers of a lien creditor with respect to all property in the custody of the bankrupt court, occupies a different position. He must carefully scrutinize all claims to property coming into his possession and maintain the custody of the court until a superior right of possession to the specificproperty is clearly established; and when such right is claimed to rest in an agreement between the bankrupt and the person claiming title, as under a conditional sale, the identification of the property must appear in the agreement. This identification, as we have seen, was not in the written agreement in this case, but, to meet this obviously necessary requirement, the appellant claims that there was a verbal identification of the property; that the sum of $1,500 was the estimated value of the goods to be delivered as required until the .restaurant had been completely furnished and outfitted; that, as deliveries were made, the goods were to be invoiced and the invoices attached to the agreement; that the true consideration was to be the total purchase price of all such goods as were fixed and determined by the invoices. But, as no invoices were attached to the agreement, the claim is made that the goods sold were identified by the account kept by the appellant on indexed cards. A transcript of what purports to be an account on indexed cards is in the record, but there is no identification of the goods on these cards as the goods intended to be referred to in the agreement. The agreement is dated November 26, 1912. The index cards contain items charged in November and December, 1912, and January and March, 1913. It is clear that these charges are not identified by the agreement.
We are of the opinion that this last objection to appellant’s claim of title to the property in controversy should be sustained, as well as the first objection.
The decree of the court below is affirmed.