259 F. 51 | 6th Cir. | 1919
Carukin filed a petition with the referee in bankruptcy seeking reclamation of a motor truck which Carukin had owned and which he had turned over to the bankrupt, under a contract of sale which purported to reserve the title until the price was paid. The referee held that the attempted reservation of title was invalid; on petition to review, the District Judge reached the contrary conclusion and granted the petition, and the trustee appeals.
The written instrument involved is more or less informal. It is given in the margin.
These decisions may be summarized as drawing the distinction, regardless of the precise form or words of the contract which purports
The statute does not, in so many words, limit itself to cases of resale by the vendee; but if it is clear that the only resale contemplated was to be one with the specific consent of the vendor — that is, one made jointly by the contract vendor and the contract vendee — the spirit and purpose of the statute would not be involved, and it should not be so construed to affect such a transaction.
Undoubtedly, both parties contemplated that this motor truck might be resold; that is admitted by Carukin; hut, as we read the contract, it expressly provides that the resale can be made only with Carukin’s written consent. Such a resale as was in contemplation would necessarily be of one of two classes: It might be for enough cash so that the bankrupt could simultaneously pay Carukin in full, and Carukin would have no further interest in the terms or conditions; or it might be on such terms that some or all of the unpaid purchase price would become a debt from the new purchaser to, or for the benefit of, Carukin. The express provision was that “this contract shall not be assigned” without Carukin’s consent. The trustee claims that this contract provision relates to the second class just mentioned, but not to the first. To assume that it does not reach the first as well, is to beg the question. If, indeed, title is reserved in Carukin, then the bankrupt cannot pass title to any purchaser except by assignment of this very contract. No matter if the whole price were planned to be paid in cash, it is obvious that if anything obstructed the completion of the deal, the
Upon the whole, when we come to classify the instrument as a conditional sale or as the reservation of a lien, we consider it ambiguous, and when we take into account the aggregate of the contract provisions- and also all the conduct and relations of the parties which the record discloses, and observe the question in the light of the rule that ambiguities will be solved against that party who was relied upon to, and who-did, select the language of the contract, we conclude that the judgment of the District Court was right, that the instrument was not of the class requiring record, and that Carukin’s title is superior to the trustee’s.
“There is duo affiant $1,125, and interest from July 5, 1917, the unpaid purchase price o£ another Stegeman truck, the title to which is in affiant. See his petition relative to it, filed with the referee herein, on January 24, 1918, on which affiant relies.”
The proof of debt and reclamation petition must therefore be considered together, and the reasonable construction is that the indebtededness is claimed only in case the petition fails.
The order of the District Court is affirmed.
This is to witness that the Acme Service Company has received from James W. Carukin, one Stegeman two-ton motor truck (No. 1565) for which it agrees to pay seventeen hundred and seventy-five dollars ($1,775), as follows:
Five hundred dollars ($500) on July 5th and the remaining $1,275 in monthly payments of about one hundred dollars ($100) until fully paid. These monthly payments to begin about August 20th, 1917, and interest at the rate of sis per cent. (6%) per annum to be computed and paid monthly.
Title to remain in James W. Carukin, as his equity appears from time to time, sufficient to secure him for amount unpaid at such times.
Acme Service Company to keep said truck insured against fire and covered by property damage insurance to secure said James W. Carukin.
Acme Service Company further agrees not to sell, transfer or assign this contract, without the written' consent of said James W. Carukin.
Dated at Grand Eapids, Mich., July 5th, 1917.
Acme Service Company,
Julius Hendricksen.
James W. Carukin.
See, and. compare, Atkinson v. Japink, 186 Mich. 335, 152 N. W. 1079; Mishawaka Co. v. Stanton, 188 Mich. 237, 154 N. W. 48, L. R. A. 1917B, 651; Luce v. Stott, 201 Mich. 587, 167 N. W. 869; Young v. Phillips, 202 Mich. 480, 168 N. W. 549; Id., 203 Mich. 566, 169 N. W. 822.