Stelling v. G. W. Jones Lumber Co.

JENKINS, Circuit Judge. The cause comes properly before us by appeal. The proceeding below was not one “in bankruptcy,” as the term is employed in section 25 of the bankruptcy act (30 Stat. c. 541), but was in substance a bill in equity by the trustee against a stranger, of which the court below had jurisdiction by the consent of the appellee, but not otherwise. Bardes v. Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175. The suit was an independent suit in the nature of an equitable replevin, of which we take jurisdiction by appeal, not by virtue of the bankruptcy act, but under the general provisions of the law creating this court. Bank v. Blakey, 47 C. C. A. 43, 107 Fed. 891. It is urged for error that the decree is faulty because (1) the contract was, in fact and in law, a chattel mortgage; (2) the contract was void as to creditors, because there was no sufficient delivery of possession of the property thereunder; (3) because of the agreement with Rusch Bros, “for the privilege of retailing any stock included in this contract, provided no advances had been made on the same” by the appellee. Undoubtedly the statute of frauds embraces all methods of disposition of property made with a design to hinder, delay or defraud creditors. The form of the transaction is of no moment if the design to outwit creditors be present. We, however, search this record in vain to find any actual design to hinder, delay, or defraud the creditors of Rusch Bros. The appellee sought to purchase the season’s output of the mill. It was necessary for that purpose that advances should be made to enable Rusch Bros, to procúre the logs, and to manufacture therefrom the lumber. Earge advances were thus made, and, as it would seem, beyond the contemplation of the contract, and because the necessities of the situation, as it developed, showed such advances to be necessary to enable the appellee to obtain the lumber contracted for. In this way the amount of the advances possibly became [267] greater than the amount of the lumber the appellee could receive under the contract. To secure this amount of advances in excess of the lumber which might be received, security upon other property was from time to time taken. In all this, a's we read the facts, there was no design to circumvent the creditors upon the part of either party to the contract. That which was done seems to have been done in absolute good faith as to' creditors. The court, which heard the history of the transaction, and had the parties before it, so found. While its finding is not conclusive upon an appellate court, it is persuasive, and is not to be overthrown except upon a showing clearly disclosing error in fact. Harding v. Hart (C. C. A.) 113 Fed. 304. We start, therefore, with the proposition that this transaction, as to intent, was an honest one. If the transaction is to be condemned, it must be because the statute condemns it and places upon it the ban of constructive fraud. The instrument was not filed as is required of a mortgage when possession of the mortgaged property is not delivered. Rev. St. Wis. 1898, § 2313. Can the agreement in question properly be deemed a chattel mortgage, and within that statute? We think not. It is clear that the instrument upon its face discloses the real intent of the parties to it. It was the design that the title to the lumber should pass absolutely to the appellee. There was reserved to the vendor no right to reclaim the property, and such reclamation under any circumstances was not contemplated. It is essential to a mortgage that there should exist the relation of debtor and creditor. There must be a debt, to secure which the property is hypothecated, upon payment of which in money the mortgaged property may be reclaimed by the debtor. Here there exists no debt, except as the advance might exceed the stated value of the lumber to be delivered, and then only to the amount of the excess. Nor can the fact that the subsequent arrangement by which Rusch Bros, executed their notes to the appellee, which the latter procured to be discounted in its bank, and advanced the proceeds to Rusch Bros., be deemed to create the relation of debtor and creditor, so as to turn this executory contract into a mortgage, and bring it within the condemnation of the statute. The arrangement with respect to those notes seems to have been made at or about the time of the contract, and they were given for the accommodation of the appellee under an arrangement that it would indorse them, and in such way could more readily procure their discount at its bank; that it would take care of the notes at maturity, and upon shipment of the lumber the notes were to be returned to Rusch Bros. We think it clear that all the moneys delivered by the appellee to Rusch Bros, were inténded to be, and were in fact, advanced under the agreement, and for the purchase price of the lumber. The instrument is therefore wanting in the essential qualities of a mortgage. Nor was it, in strictness, a bill of sale. There was no property at the time existing upon which it could act. The property was to be produced by means of the advances to be made under the contract. It was to be brought into being through the labor contracted to be performed. It was an executory contract to manufacture lumber from logs to be cut from lands held under contract or to be pur [268] chased; the necessary advances of money to procure the logs to be furnished by the appellee. We think it clear that the court below correctly interpreted the contract. It is claimed, however, that even under such construction the contract is void as to creditors under section 23x0, Rev. St. Wis. 1898, which reads as follows: “Every sale made by a vendor of goods and chattels In his possession or-under his control, and every assignment of goods and chattels', unless the-same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor or the creditors of the person making such assignment or subsequent purchasers in good faith; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under such, sale or assignment that the same was made in good faith and without intent to defraud such creditors or purchasers.” It may be doubted whether the statute has application to an agreement of this sort, where the thing to be delivered is first to be manufactured; for, as was well said by counsel, there can be no immediate delivery of goods yet to be manufactured. The purpose of the statute is clear. It is that one concerned with the property, either as creditor of or purchaser from the vendor, shall not be deceived ; shall not be led to deal in respect thereto with one clothed with the possession and ostensible ownership, when the actual ownership is in another. The reason of the rule would seem to fail of application in the case of an article to be made. The statute seeks, as we think, to-prevent sales of property in esse by the owner, he retaining possession, and so being clothed by the purchaser with the indicia of ownership. It sought to strike at secret transfers of property, which are mere devices to defraud, and to that end attached a presumption of fraud to all transfers not accompanied by immediate delivery and followed by actual and continued possession. Therefore, as a general rule, the possession of the vendee must be exclusive of the vendor, and not concurrent with him. Still, when that has been done which shows a bona fide intention to transfer the actual title, it is not forbidden to the vendee to assist in the care and management of the property sold; the change of ownership being properly manifested. If, however, contracts such as the one before us can properly be said to be within the statute, we are brought to the consideration of the question of delivery. All personal property is not capable of the same sort of possession, and delivery of the possession is such as the nature and character of the property will admit. If actual delivery be not practicable, constructive or formal delivery is sufficient. In all such cases the law takes cognizance of “the character of the property, the nature of the transaction, the possession and relation of the parties to the sale, and the intended use of the property.” Thus formal delivery is sufficient where actual delivery is injurious or impracticable. Familiar instances are found in. the case of a ship at sea, where immediate delivery is impossible; hides in a vat and paper in a mill in process of manufacture, where delivery means destruction of, or great damage to, the articles; or ore or coal. [269] where immediate removal would be attended with waste and expense. In all such cases the law demands only such public evidence of transfer of title as is possible in the nature of the transaction. Thus it is stated in Missinskie v. McMurdo, 107 Wis. 578, 582, 83 N. W. 758, 760: “The delivery and possession contemplated by this statute is not that ■technical delivery which gives validity inter partes to a contract of sale, in compliance with section 2308 (Rev. St. 18981, but is such a delivery and •change of possession that those familiar with the situation would naturally draw the inference of a change of ownership. The purpose of section 2310 is to require that parties who transfer property shall accompany the transfer by the public indicia of such change, and that, if such indicia are ab•sent, they must be prepared to establish the bona tides of the transaction. Bank v. Rugee. 59 Wis. 221, 226, 18 N. W. 251; Schneider v. Kraby, 97 Wis. 519, 73 N. W. 61." Here there was all the delivery possible under the circumstance's. It was necessary that the logs should be delivered upon the grounds •of Rusch Bros; and at their mill, for they were there to be made into ■lumber. These logs were branded with the brand of the appellee, which was all that could be done to indicate title. Such well-known •indicia of ownership gave notice to the world that the logs were not •the property of Rusch Bros. The lumber produced from the logs was .piled upon the mill ground for shipment, and each pile was marked with the stencil of the appellee. What more could be done to indicate •ownership? We think that there was here all the delivery possible under the circumstances, and sufficient to meet the demands of the statute. If, however, we are therein mistaken, and the statute demands an •immediate and permanent change of possession, still the want of it •raises only a presumption of fraud, which may be rebutted by showing that the sale “was made in good faith and without any intent to defraud.” It has been held that such presumption is overcome by proof •of payment of full consideration. Plow Co. v. Hanthorn, 71 Wis. 529, 37 N. W. 825; Cook v. Van Horne, 76 Wis. 520, 526, 44 N. W. 767; Commission Co. v. Shong, 98 Wis. 380, 74 N. W. 114. There can be •no question here of payment of full value for this property, and of the ’ •entire good faith of the parties to the contract. It is also urged that the contract i|s void because of the clause therein ■giving to Rusch Bros, “the privilege of retailing any stock included •in this contract, providing no advances have been made on the same,” ■and of the supposed assent of the appellee to retail sales of the lumber to the amount of $1,000; and this under section 2306, Rev. St. Wis. 1898, which provides: “All deeds of gift, all conveyances and all transfers or assignments, verbal ■or written, of goods, chattels or things in action, made in trust for the use •of the person making the same, shall be void as against the creditors, existing or subsequent, of such person.” Without doubt, all saléis, verbal or written, which give to the- vendor the right of possession and of disposition over the property sold, with the intent to defraud creditors, are reprobated in the law. It is, however, difficult to understand that this section can have application to an executory contract of sale of articles to be manufactured. But passing [270] that question, we are of opinion that there is nothing here to indicate a transfer in trust for the use of Rusch Bros. By the contract the appellee was to have the entire stock of lumber to be cut and manufactured by the mill. The clause in question gives Rusch Bros, the privilege of retailing any of that stock upon which no advances should be made. This reserves to Rusch Bros, and carves out from the general mass the logs and lumber upon which no advanced should be made. The contract permitted them to procure logs and cut at their own expense the lumber necessary to supply their retail trade, and this provision qualified the general language of the contract,—“their entire stock” of lumber, to be cut and manufactured. Nor do we think that the subsequent acts of the parties under the contract indicate a different agreement. It is true, the advances after a time became general, and not specific, as contemplated, and in the end probably exceeded the total value of the lumber which the appellee could obtain under the contract; but it is not shown that retail sales were permitted to be made from lumber made from any logs upon which appellee had advanced, or from any pile of lumber marked with the stencil of the appellee. The. testimony of Mr. Jones, upon which the appellant largely relies does not, as we think, taken a's a whole, indicate any agreement other than that expressed in the contract. The charge by the appellee of 20 per cent, of the retail sales, while possibly unwarranted, was not in pursuance of any agreement, but was a charge subsequently made, and after more moneys had been advanced, as the appellee supposed, than it could possibly receive from the lumber manufactured. The court below we think properly characterized the transaction as one neither harmful to creditors, nor so intended. We recognize the rule that intent bona fide or mala fide is immaterial to an instrument per se fraudulent and void in law. The fraud which the law imports'to it is conclusive. Blakeslee v. Rossman, 43 Wis. 123. But we do not think the rule applicable to the instrument in question. The decree must be affirmed.