Peoples Bank & Trust Co. v. COMFORT ENG. CO.

408 So. 2d 1190, 32 U.C.C. Rep. Serv. (West) 1613, 1982 Miss. LEXIS 1852
CourtMississippi Supreme Court
DecidedJanuary 20, 1982
Docket53,164
StatusPublished
Cited by1 cases

This text of 408 So. 2d 1190 (Peoples Bank & Trust Co. v. COMFORT ENG. CO.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peoples Bank & Trust Co. v. COMFORT ENG. CO., 408 So. 2d 1190, 32 U.C.C. Rep. Serv. (West) 1613, 1982 Miss. LEXIS 1852 (Mich. 1982).

Opinion

408 So.2d 1190 (1982)

PEOPLES BANK & TRUST COMPANY
v.
COMFORT ENGINEERING COMPANY, INC.

No. 53,164.

Supreme Court of Mississippi.

January 20, 1982.

Smith, Downs, Ross, Trapp & Coleman, Wendell H. Trapp, Jr., Corinth, for appellant.

Sparks & Colburn, David R. Sparks, Tupelo, for appellee.

Before SMITH, P.J., and LEE and BOWLING, JJ.

ROY NOBLE LEE, Justice, for the court:

Comfort Engineering Company, Inc. filed suit against Peoples Bank & Trust Company in the Circuit Court of Lee County, Honorable Neal Biggers, presiding, seeking possession of four air conditioning units valued *1191 at approximately $86,000. The circuit judge, sitting without a jury, entered judgment in favor of Comfort Engineering Company, Inc., and Peoples Bank & Trust Company has appealed to this Court.

The sole assignment of error presents the question of whether or not the lower court erred in failing to recognize that Peoples Bank & Trust Company held a valid perfected security interest superior to the interest of Comfort Engineering Company, Inc., and erred in declining to award possession of the air conditioning equipment to Peoples Bank & Trust Company.

On June 27, 1975, Fashions by Wisz, Inc. (Fashions), acquired certain property in the city of Tupelo, Mississippi, for the purpose of operating a sewing plant. On December 19, 1975, appellant extended credit to Fashions in the sum of $150,000 evidenced by a promissory note in such amount. The promissory note was secured by a security interest in certain personal property generally described as sewing equipment, electric wiring, carpet, light fixtures, air conditioning units and duct work. The standard security agreement was executed by Fashions in favor of appellant and a 12-page Uniform Commercial Code Financing Statement (UCC-1) was executed in duplicate by Fashions in favor of appellant. The Uniform Commercial Code Financing Statement was filed forthwith in the Chancery Clerk's Office of Lee County, Mississippi, on December 28, 1975, and in the Office of the Secretary of State of the State of Mississippi on December 31, 1975.

On January 28, 1976, Fashions contacted appellant for further credit and appellant extended Fashions an additional $150,000. Fashions executed a second promissory note payable to appellant in said amount with an indication upon the said note that it constituted an additional advance and was secured by the same collateral that secured the first promissory note. On August 9, 1976, the two $150,000 promissory notes from Fashions to appellant, aggregating $300,000, were consolidated and the indebtednesses were renewed.

On May 3, 1976, appellee sold two air conditioning units to Fashions for the sum of $45,544.85 and on July 1, 1976, appellee sold two additional air conditioning units to Fashions for the sum of $40,666. Two conditional sales contracts were executed by Fashions in favor of appellee covering the respective transactions. The contracts were subsequently filed with the Lee County Chancery Clerk on August 19, 1977.

Fashions became involved in deep financial trouble, defaulted upon its debts and filed a petition in bankruptcy. There were then in existence (1) a security agreement and Uniform Commercial Code Financing Statement (UCC-1) from Fashions to the appellant, dated December 19, 1975, and recorded in the Office of the Chancery Clerk of Lee County, Mississippi, and in the Office of the Secretary of State of the State of Mississippi, which contained the following statement of collateral: "air conditioning units and duct work," (2) conditional sales contract signed by Fashions dated May 3, 1976, which was filed in the Office of the Lee County Chancery Clerk on August 19, 1977, pertaining to two air conditioning units and conditional sales contract executed by Fashions in favor of appellee dated July 1, 1976, filed for record in the Lee County Chancery Clerk's Office on August 19, 1977, pertaining to the additional two air conditioning units. On October 2, 1979, appellee filed an action in replevin, claiming a security interest in the four air conditioning units mentioned above and the Lee County Circuit Court awarded possession of the four units to appellee.

(a) Security agreement. The security agreement, upon which appellant relies, contained an after-acquired property clause. Language in the instrument reads as follows:

It being intended to convey whether correctly described or not, all miscellaneous sewing equipment, etc. as listed on supplemental sheets attached, as of this date and to be hereafter acquired and located in our place of business at 120 Franklin Street, Tupelo, Mississippi, together with all equipment, parts, accessories, *1192 attachments and replacements thereof, and additions thereto, and all other goods of the same class, whether now owned or hereafter acquired by debtor and the proceeds thereof (hereinafter collectively called `collateral') to secure (1) payment of a note dated various dates executed and delivered by debtor to bank in the sum of $300,000.00 payable as to principal and interest as therein provided; ... (emphasis added.)

The attachments incorporated into the security agreement and the dual Uniform Commercial Code Financing Statement (UCC-1), executed by Fashions, contained the following reference and statement of collateral:

"Air conditioning units and duct work."

The Uniform Commercial Code Financing Statement also contained the following provision:

Miscellaneous equipment used in our business known as Fashions by Wisz, Inc. located at 120 Franklin, Tupelo, Ms. and more particularly described as follows: As of this date and to be hereafter acquired.

Mississippi Code Annotated section 75-9-312(5)(a) (1972) governs the priority between conflicting security interests in the same collateral as follows:

(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interest which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined according to the following rules:
(a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.

The parties agree that the facts of this case are largely uncontradicted and that the decision here is one upon the law as applied to those facts. It is undisputed that appellant perfected its security interest in the air conditioning units, according to law. Likewise, it is undisputed that appellee wholly failed to perfect its security interest in said property.

(b) After-acquired property clause. Mississippi Code Annotated section 75-9-204 (1972) provides the following with reference to after acquired property.

(1) Except as provided in subsection (2), a security agreement may provide that any or all obligations covered by the security agreement are to be secured by after-acquired collateral.
(2) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (section 75-9-314) when given as additional security unless the debtor acquires rights in them within ten (10) days after the secured party gives value.

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Bluebook (online)
408 So. 2d 1190, 32 U.C.C. Rep. Serv. (West) 1613, 1982 Miss. LEXIS 1852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peoples-bank-trust-co-v-comfort-eng-co-miss-1982.