Liquid Carbonic Co. v. Quick

LANNING, Circuit Judge. These appeals are from orders dismissing the petitions of appellants for the reclamation of certain articles of personal property in the possession of the bankrupt’s trustee. The articles were delivered to the bankrupt under the terms of certain written contracts, which the appellants insist were bailments for hire, and which the appellees insist were conditional sales. If any of the contracts be a bailment, the property delivered under it should be restored to the appellant whose contract is so construed; if any of them be a condL tional sale, it is conceded! that the property delivered under it belongs to the bankrupt’s trustee. ' The facts are so fully stated in the opinion of the court below (see In re Rinker [D. C.] 174 Fed. 490) that they need not be repeated here. As to case No. 55 — the National Cash Register Company’s Case— we agree with the conclusion of the court below. The contract in that case expressed no term for the bailment and no time when the cash register was to be surrendered by the bankrupt to the cash register company. It fixed the value of the register at $620, admitted a credit of $205, and provided for the payment in installments of the remaining $4Í5. True, the remaining $415 is denominated “rental,” and there is other language in the contract appropriate to a bailment for hire; but, read as a whole, we think the contract is one of sale and not a bail [605] ment. As to this case the decree of the District Court is affirmed, with costs. We also agree with the conclusion of the court in case No. 52, in which an ice cream apparatus was delivered by the Diquid Carbonic Company to the bankrupt. Although one of the Diquid Carbonic Company’s blank printed leases was used in preparing the contract, such changes were made in it as to show that the contract was one of sale and not a bailment. The decree as to this case is also affirmed, with costs. In case No. 54 we find an order, dated July 1,1908, addressed by the bankrupt to the Diquid Carbonic Company, requesting that company to ship to him a soda water apparatus, fully described in the order. In the upper left-hand corner are the words “Sold by Hawkins,” and in the margin, under the heading “Prices,” are entries showing the value of the apparatus to have been $2,227.75, and a credit of $498.50 for a secondhand apparatus, leaving a balance, termed “net price,” of $1,-729.25. Then follows language by which the bankrupt declared that he leased the apparatus from the company for the term of 36 months for a total rental of $1,729.25, payable in designated installments. Further on is this language: “At the expiration of the term of this lease we agree to surrender to you all the property herein described, in good condition, or, at our option, to purchase the same upon the further payment to you of one dollar; upon which payment you are to execute and deliver to us a bill of sale covering said property. No title to said property to vest in us, except as lessees thereof, until the execution of such bill of sale.” This order was accepted by the company. Its full text will be found in 174 Fed. 494-496. We differ with the court below in its construction of this contract. The language employed by the parties shows that they intended to create a bailment with a right in the bailee to become a purchaser at the end of the definite term prescribed for the bailment. The words “Sold by Hawkins,” in the upper left-hand corner, and the gross price, allowance for the secondhand apparatus and net price, given in the margin, are separated from the body of the order by lines, and constitute no part of the real contract between the parties. The provisions that the apparatus should be “leased” to the bankrupt, for a specified term and a specified rental, and that at the expiration of the term it should be surrendered to the company, are the indicia of a bailment. The cases of Farquhar v. McAlevy, 142 Pa. 233, 21 Atl. 811, 24 Am. St. Rep. 497, Kelly Road Roller Co. v. Spyker, 215 Pa. 332, 64 Atl. 546, In re Tice (D. C.) 139 Fed. 52, and In re Morris (D. C.) 156 Fed. 597, referred to in the opinion of the court below, differ from the present case in that in none of them was surrender by the party in possession required, nor in some of them was any term of bailment expressed. Following the decisions in Rowe v. Sharp, 51 Pa. 26; Crist v. Kleber, 79 Pa. 290; Enlow v. Klein, 79 Pa. 488; Ditman v. Cottrell, 125 Pa. 606, 17 Atl. 504; Stiles v. Seaton, 200 Pa. 114, 49 Atl. 774; Cincinnati Equipment Co. v. Strang, 215 Pa. 475, 64 Atl. 678; American Car Co. v. Altoona, etc., Railway Co., 218 Pa. 519, 67 Atl. 838; Kelly Springfield Road Roller Co. v. Schlimme, 220 Pa. 413, 69 Atl. 867, 123 Am. St. Rep. 707; and National Cash [606] Register Co. v. Shurber, 41 Pa. Super. Ct. 187 — we think the contract relating to the soda water apparatus should be held to be a bailment, and therefore that the decree of the court as to this contract should be reversed, with costs. Our conclusion is the same as to case No. 58, in which the Liquid Carbonic Company delivered to the bankrupt certain carbonating machinery. The contract is similar to the one under which the soda water apparatus was delivered in case No. 54. It is unnecessary to. say more. The decree as to this contract should also be reversed, with costs. Decrees as to cases Nos. 52 and 55 affirmed,- with costs. Decrees as to cases Nos. 53 and 54 reversed, with costs.