Opinion
No. 13761.
March 26, 1928.
A.O. Fording and Herbert H. Hawkins, both of Pittsburgh, Pa., and Fillius Fillius and Robert G. Day, all of Warren, Ohio, for petitioner.
Wm. G. Bechman and Sachs Caplan, all of Pittsburgh, Pa., for receiver.
In Bankruptcy. In the matter of J.R. McCrory, trading as the J.R. McCrory Company, bankrupt. On rule issued on petition of the Frost Steel Products, Inc., requiring bankrupt's receiver to show cause why certain goods should not be turned over to petitioner. Rule dismissed, and petition denied.
Pursuant to petition of Frost Steel Products, Inc., a rule was issued upon the receiver of the bankrupt to show cause why certain chains, in the possession of the bankrupt when the receiver was appointed, should not be turned over to the petitioner. It was alleged by petitioner that said chains were its property, and had been in the possession of the bankrupt pursuant to a consignment agreement. The receiver answered the petition of the claimant, denying its right to receive the chains. Upon hearing it developed that the chains had originally been sold by the claimant to the bankrupt. It developed, after the chains had been in the possession of the bankrupt for several months, that he was unable to pay the full amount of the purchase price, and it was agreed between the claimant and the bankrupt that the latter should pay for that part of the shipment of chains which had been sold by him, and should hold the balance as consignee, paying for the chains as they were sold. The time or method for the reclamation of the chains by the claimant was not fixed by the agreement.
The testimony of the claimant indicates that bankrupt, at the time the claimant was seeking to collect the purchase price of the chains from him, was making some complaint as to the quality of the chains, and was claiming a right to rescind the contract. The petition for reclamation of the chains has not mentioned any rescission of the sale. From the testimony, we are unable to find that any actual legal rescission of the contract of sale took place. It will be remembered that a part of the original shipment had been sold by the bankrupt, and that the balance had been kept in his place of business and offered for sale for several months. Under such circumstances, he could not claim the right of rescission. McGlinn v. Jackson, 86 Pa. Super. 562; Elk Textile Co. v. Cohen, 75 Pa. Super. 478; Breen v. Bowers, 82 Pa. Super. 552.
Ignoring, as we must, the claim of rescission, we have a sale by claimant to the bankrupt, a sale of part of the shipment of chains by the bankrupt to his customers, a payment to the claimant by the bankrupt for the chains so sold by him, and the subsequent agreement that the remaining portion of the chains should be held by bankrupt under a consignment agreement. At the time such agreement was entered into, no change of possession occurred, nor by marking or otherwise was notice given to creditors that the chains in question were not the property of the bankrupt.
Under section 47 of the Bankruptcy Act (11 USCA § 75), the trustee in bankruptcy, as to all property in the custody or coming into the custody of the bankruptcy court, is deemed to be vested with all the rights of a creditor holding a lien by legal proceedings. By the law of Pennsylvania, a transfer of property such as was made in the instant case is void as against creditors. Bowersox v. Weigle, 77 Pa. Super. 367; Sterling Commercial Co. v. Smith, 291 Pa. 236, 139 A. 847; Wendel v. Smith, 291 Pa. 247, 139 A. 873.
The rule upon the receiver must be dismissed, and the petition of Frost Steel Products, Inc., denied.