No. 2,055 | 9th Cir. | May 20, 1912
(after stating the facts as above).
“Sec. 4585: Contracts to be Piled, When:
“All conditional sales of personal property or leases thereof containing a conditional right to purchase where the property is placed in the possession of the vendee shall be absolute as to all creditors, or purchasers in good .faith, unless within ten days of the taking of possession by the vendee a*259 memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall he filed in the auditor’s office of the county whore, at the date of the vendee’s taking possession of the property, the vendee resides.”
It is objected to the order in question that it is not in accordance with the requirements of the statute, and is therefore not the evidence of a conditional sale. A memorandum of a conditional sale is subject to the general rules respecting the formation of other contracts. Among other things, there must be a mutuality of assent; that is to say, there must he an offer of purchase or sale on the one part and an acceptance of the terms of the purchase or sale on the other part, and where the statute requires the terms and conditions of the sale to appear in the memorandum, and such memorandum signed by the vendor and vendee, it follows that the signatures of the parties to the memorandum must be so affixed that it will clearly appear that both parties have accepted! the terms and conditions of the contract. In this respect the instrument before the court is fatally defective. It is, in form, an order in writing directed to the Purcell Safe Company, the vendor, signed in writing by S. C. Osborn Company and S. C. Osborn, the vendee, requesting the delivery to the S. C. Osborn & Co. of “one group of 1,020 safe deposit boxes.” Below the written signatures of S. C. Osborn Company and S. C. Osborn in the printed form upon which the order is written is a single cross-line, indicating that the preceding matter had come to an end, and that what follows is a different subject, and so in fact it appears to be. What follows is a notice that, “Salesmen are not allowed to collect for us,” and the further notice that, “Anj- payments made to them will be at your risk.” Under these two notices is the printed name of “Purcell Safe Co.,” the vendor. Without stopping to consider the objection that this printed name is not the “signed name" of the vendor, we think it is otherwise insufficient as evidence of a conditional sale contract. Neither of these notices to which this printed name is appended refers to the previous order of the vendee, and neither expresses the assent or the acceptance by the Purcell Safe Company of the offer contained in the order of S. C. Osborn & Co. for the delivery of the safe deposit boxes. There is no evidence on the face of the instrument of an intent or purpose on the part of the vendor to accept the terms proposed by the vendee, and the order itself does not show that the vendor had accepted or agreed to the terms and conditions of the proposal. The so-called/ agreement was by its terms and conditions absolutely unilateral, and extraneous evidence was not admissible to show that the terms and conditions of the proposal were accepted by the vendor. Such acceptance was one of the terms and conditions required by the statute to appear upon the face of the instrument.
The petition and adjudication in bankruptcy in this case were filed in December, 1910. As far as the bankruptcy act is concernes, the right of the trustee to the property in question is therefore governed by the amended act (Act June 25, 1910, c. 412, § 8, 36 Stat. 840 [U. S. Comp. St. Supp. 1911, p. 1500]), amending section 47a
“And such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon.”
Giving effect to the provisions of the bankruptcy act and the statute of the state of Washington, the court must hold that the sale made by the petitioner, Purcell Safe Company, to the bankrupt, J3. C. Osborn & Co., and S. C. Osborn, of the property described in the contract, was an absolute and unconditional sale.,
The decree of the court below is affirmed.