Metter Banking Co. v. Fisher Foods, Inc.

359 S.E.2d 145, 183 Ga. App. 441, 4 U.C.C. Rep. Serv. 2d (West) 917, 1987 Ga. App. LEXIS 2720
CourtCourt of Appeals of Georgia
DecidedMay 20, 1987
Docket74132
StatusPublished
Cited by3 cases

This text of 359 S.E.2d 145 (Metter Banking Co. v. Fisher Foods, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metter Banking Co. v. Fisher Foods, Inc., 359 S.E.2d 145, 183 Ga. App. 441, 4 U.C.C. Rep. Serv. 2d (West) 917, 1987 Ga. App. LEXIS 2720 (Ga. Ct. App. 1987).

Opinions

Birdsong, Chief Judge.

This is an appeal from a grant of summary judgment to Fisher Foods, Inc., upon the trial court’s determination that Fisher Foods had a prior perfected security interest in “the crops, growing or to be grown,” (to wit, Vidalia Onions), of debtors He-Bo Farms, Inc. and James Bowen. The appellant, Metter Banking Company, contends that the trial court erred in the grant of summary judgment to Fisher Foods, and in denying summary judgment to Metter Banking Company for the contended reasons that the bank held a prior perfected security interest in He-Bo Farms’ onions, and that Fisher Farms was aware of such superior interest. Held:

We reverse, but not for the reasons assigned by appellant Metter Banking Company.

[442]*442The bank advanced money to He-Bo Farms in 1981, obtaining, under a written security agreement, a security interest described in the December 28, 1981 financing statement, as follows: “All inventory of . . . He-Bo Farms, Inc. ... of every kind and description, whether now or hereafter existing or acquired, all accounts receivable, and all contract rights of business, whether now existing or hereafter acquired, evidencing any obligation to debtor for payment for goods sold or leased or services rendered, all interest of debtor, in any goods the sale or lease of which shall give or shall give rise to any of the foregoing, and all products and proceeds therefrom.” A box was checked on the financing statement indicating “Proceeds are also covered,” but a like box indicating “Crops are covered,” was not checked.

In December 1982, appellee Fisher Foods, Inc., an Ohio corporation, lent He-Bo Farms and Bowen $200,000. The president of Fisher Foods came to Metter to discuss this loan with He-Bo and with the Metter Banking Company. A written agreement arose from these negotiations, wherein Fisher Foods agreed to lend He-Bo $200,000; He-Bo and Bowen assigned to Fisher Foods one dollar for each and every bag of Vidalia Onions owned, processed or packaged and sold by or through He-Bo Farms and Bowen; He-Bo Farms and Bowen agreed to cause all invoices and payments for such onions to be made to Metter Banking Company and He-Bo or Bowen, and deposited in Metter Banking Company; the bank acknowledged He-Bo Farms’ assignment of $1.00 per bag to Fisher Foods, and agreed to segregate and remit to Fisher Foods $1.00 for each and every bag sold. The agreement also granted Fisher Foods “a security interest in the Vid-alia Onion crop, whether growing or harvested, and whether packaged, stored or in process,” to the extent of the unpaid balance of the loan. Metter Banking Company acknowledged this agreement in writing “solely for the purpose of acknowledging [He-Bo Farms’ assignment of $1.00 per bag to Fisher Foods] and [the bank’s] agreement to segregate and pay funds received to Fisher Foods, Inc.”

Fisher Foods then, on December 27, 1982, filed a financing statement covering “[t] he crops growing or to be grown as listed. . . .”

Matters proceeded as anticipated, until early 1984, when He-Bo Farms defaulted on Fisher Foods’ loan. In February 1984, Fisher Foods obtained a judgment against He-Bo Farms in the amount of $113,075.71 plus costs and interest. Thereafter, according to Fisher Foods, He-Bo Farms offered to ship portions of its onion crop to Fisher Foods in partial satisfaction of the judgment debt, and appel-lee Fisher Foods accepted this offer, “as it had a valid perfected security interest in the crop by virtue of the December 27, 1982 financing statement.” The appellant Metter Banking Company then sued Fisher Foods for the value of the onions, $54,475 as evidenced by the invoices representing those shipments. The trial court found that the [443]*443bank did not, as it claimed, have a prior perfected security interest in He-Bo Farms’ onion crop, while Fisher Foods did, and granted judgment accordingly.

The appellant bank does not challenge the sufficiency of Fisher Foods’ stated interest in Fisher Foods’ financing statement or in its security agreement, but the bank earnestly contends its own prior financing statement, as to “inventory,” includes “crops,” and makes other arguments centered upon Fisher Foods’ knowledge of the bank’s interests. However, we agree with the trial court that clearly the bank did not have a perfected interest in “the crops.” See OCGA § 11-9-109 (3) and (4). Be that as it may, it is clear that what the bank did have was a prior perfected interest in all of He-Bo’s “accounts receivable and all contract rights of business, whether now existing or hereafter acquired, evidencing any obligation to debtor for payment of goods sold, [and] all interest of debtor in any goods the sale ... of which shall give rise to any of the foregoing, and all products and proceeds therefrom.” (Emphasis supplied.)

OCGA § 11-9-106 defines “account” in the sense of collateral, as “any right to payment for goods sold . . . whether or not it has been earned by performance(Emphasis supplied.) Formerly this code section included the designation of “contract rights” which meant the right to payment to be earned in the future. See former Ga. Code Ann. § 109A-9 — 106, Harrison ed., Ga. Revisers’ Comments; E. Turgeon Constr. Co. v. Elhatton Plumbing &c. Co., 292 A2d 230 (S. Ct. R. I. 1972). This distinction is now included in the definition of “accounts” in OCGA § 11-9-106, but the substance of the rights granted remains the same. He-Bo Farms had a right to payment for its onions, to be earned by sale, and did not have the right to give it up and thereby defeat the bank’s perfected security interest in He-Bo’s contract rights and accounts receivable “whether or not [they have] been earned by performance(Emphasis supplied.) OCGA § 11-9-106. It was certainly not intended that the debtor could defeat entirely the bank’s perfected interest in its accounts receivable by giving away its product to another creditor with an interest in the product which is inferior in point of perfection. “The entire thrust of [Article 9 of the UCC] is the protection of the innocent creditors from a secret transfer of substantial intangible assets upon which they relied.” E. Turgeon Constr. Co., supra, pp. 233-234.

Moreover, the security agreement between He-Bo Farms and the bank evidenced the intent to secure as collateral the substantial right of He-Bo Farms to sell its produce and be paid for it. The bank’s security agreement required precise accounting by He-Bo Farms of the disposition of its produce, its accounts, profit, loss, collections, discounts, and receivables actually charged off He-Bo Farms’ books. He-Bo Farms covenanted that “except for the sale or lease of Inven[444]*444tory in the ordinary course of its business, will not sell, lease, assign or create or permit to exist any lien on or security interest in any Collateral to or in favor of anyone other than the Bank. ...” OCGA § 11-9-306

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Metter Banking Co. v. Fisher Foods, Inc.
359 S.E.2d 145 (Court of Appeals of Georgia, 1987)

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Bluebook (online)
359 S.E.2d 145, 183 Ga. App. 441, 4 U.C.C. Rep. Serv. 2d (West) 917, 1987 Ga. App. LEXIS 2720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metter-banking-co-v-fisher-foods-inc-gactapp-1987.