Floyd v. C. Nelson Mfg. Co.

93 F.2d 857, 1938 U.S. App. LEXIS 3677

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 5, 1938
• Docket: No. 8564
• Status: Published

Opinions

HUTCHESON, Circuit Judge.

This appeal is from an order granting appellee’s reclamation petition as to certain ice cream cabinets and accessories, which the bankrupt held under two title retention contracts, each executed and acknowledged by J. O. Motley, president and general manager, and each filed for record.

The referee thought the description in the title contracts insufficient, the acknowledgments to them defective, that because thereof their recordation did not visit the bankrupt’s creditors with notice, and that the property sought to be reclaimed must therefore, under section 3352 of the Mississippi Code of 1930, be treated as to the trustee and creditors, as the property of the bankrupt.

The District Judge disagreed with these conclusions. He thought the description sufficient under our decision in Liquid Carbonic Corporation v. Phillips, 5 Cir., 68 F.2d 515, 516. He thought the acknowledgments, though informal, sufficient within the general rule of substantial compliance prevailing as to corporate acknowledgments.

We agree with the District Judge. And first, as to the description. Attached to each title retention contract was a complete list of equipment sold under it, identified by motor and compressor numbers. Appellant refers to this listing as hieroglyphics, and therefore insufficient as description. Hieroglyphics in the ancient sense they certainly are not, for there is nothing sacred or peculiar to ancient peoples in the characters and numbers used. Hieroglyphics in the sense of secret and enigmatical or unintelligible signs they are not, to those who deal in such machines, any more than motor and engine numbers by which automobiles are described are to those who deal in automobiles, or field notes in terms of varas, are in Texas, where measurements are made in varas.

In the Liquid Carbonic Case supra, we undertook to review the Mississippi decisions construing these statutes. We found them in accord with the rule of reason generally prevailing, that a description is sufficient if it “mentions some fact or circumstance connected with the property which will serve to distinguish it from all other property of the same kind * * some other mark, which, when proved to exist, would separate and distinguish it from other property.” Kelly v. Reid, 57 Miss. 89, 91.

Appellant cites and relies on two Mississippi decisions published since our decision was written, Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726; National Foods, Inc., v. Friedrich, 173 Miss. 717, 163 So. 126, 127.

We find nothing in either of these decisions in conflict with what we have written. Apparently the Mississippi Supreme Court does not regard them as in conflict. In the Garmon Case, there was no identifying mark whatever to separate and distinguish this property from any other of like kind. In the National Foods Case, there was only a number unidentified and unexplained. The Supreme Court in that case said: “Without the number of the display case the description of it undoubtedly would not be sufficient. * * * And the number does not make it so .unless it separates the case from all other cases of like kind.”

Here the cabinets in question are certainly marked off from all other cabinets by motor and compressor numbers. If anything, the identifying description in this case is more definite than it was in the Liquid Carbonic Case.

As to the acknowledgments, little need be said. That, to the second of the contracts, was precisely formal in its re.citals. It omitted nothing' either of form or of substance. That, to the first, while informal, was, we think, under the general rule prevailing as to such acknowledgments, sufficient to entitle it to record. 1 C.J. 817; 1 C.J. 850; Note to 29 A.L.R. 919; 72 A.L.R. 1290; Griffis v. Martin Oil Co., 127 Miss. 606, 90 So. 324; Bank of Dillon v. Murchison, 4 Cir., 213 F. 147.

The purpose of the Mississippi sign statute, like that of the Virginia Traders Act, Code Va.1887, § 2877, is to defeat secret liens. In Hodge v. Turner, 96 Va. 624, 32 S.E. 291, at page 294, the court said: “The purpose of the legislation * * * [is] to preclude the assertion of secret claims of ownership against creditors of him who has conducted the business, possessed the property, and appeared to be its owner.”

The statute under consideration here should be given effect, it has uniformly been given effect to accomplish this purpose. It should not be tortured into a strained construction to defeat honest transactions entered into in accordance with upright business practices.

We think the District Judge fairly and reasonably construed and applied the statute. We approve his judgment. It is affirmed.»