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23 F.(2d) 32

delivered to the grantee, conveying the land to the latter in fee simple, is one of the most solemn of civil acts. It is not a thing to be played with, or reclaimed at pleasure, as a hawk in falconry. It is not void on account of either want or failure of consideration; nor does want or failure of consideration raise a resulting trust." Tillaux v. Tillaux, 115 Cal. 663-667, 47 P. 691, 692. On the other hand, if there was a consideration in fact, or if there was even an acknowledgment of the receipt of a nominal consideration in the deeds, there was no resulting trust. "It is not improper to notice a statement made on the argument of the case in reference to the contents of the conveyance, though the record itself is silent upon the subject. It was stated that the conveyance did not express the consideration for which it was given, but acknowledged the payment of a nominal consideration in money. This is an important matter, and, if left open, may embarrass the action of the court below, and become the basis of a second appeal. If the statement was correct, parol evidence was inadmissible to establish the trust, and the plaintiff, though entitled to a reversal, must eventually fail to obtain the relief which he asks. "This distinction,' says Story, 'is to be observed in cases where a consideration, although purely nominal, is stated in the deed. If no uses are declared, the grantee will take the whole use; and there will be no resulting use for the grantor; because the payment, even of a nominal consideration, shows an intent that the grantee shall have some use, and no other being specified, he must take the whole use.' 2 Story's Eq. § 1199. The doctrine of resulting uses and trusts is founded upon a mere implication of law, and in general this implication cannot be indulged in favor of the grantor, where it is inconsistent with the presumptions arising from the deed. Unless there is some evidence of fraud or mistake, the recitals in the deed are conclusive upon the grantor, and no resulting trust can be raised in his favor in opposition to the express terms of the conveyance." Russ v. Mebius, 16 Cal. 350. See, also, Feeney v. Howard, 79 Cal. 525-530, 21 P. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162; Pomeroy's Equity (4th Ed.) §§ 1035, 1036.

Nor can it be said that the conveyances were without consideration as a matter of fact because the deeds and other instruments of conveyance were the consideration for the collateral agreements, and vice versa.

Let us now turn to the collateral agreements themselves. If these create or recog23 F. (2d)-3

nize any trust in favor of the grantor it would seem that the trust is express and not implied, but aside from this the agreements not only fail to recognize or establish any trust, resulting or otherwise, in favor of the grantor, but they expressly repel any inference that any such trust was intended. For aside from the provision of the agreements, to which reference has already been made, that the handling and management of the property was subject to the right of the grantee as owner to collect upon or to sell and convert into money and to exercise all the rights of ownership of and over any and all of such properties at such times and in such manner and upon such terms as in his judgment should seem best, the agreements contain this further provision:

"It is understood and agreed that no duty herein imposed affects or impairs, or shall affect or impair, the absolute title or ownership of any property, property right or beneficial interest this day conveyed to me by said Minerva H. Roberts, or which may hereafter be conveyed by her to me, or which may come to me by or under her last will and testament, but all such titles and ownership are and shall be deemed and held to be titles and ownership absolute in me, the net proceeds only of such properties and interests to be applied to the payment of said sums and amounts last above mentioned."

For these reasons there is no basis for the claim that a trust resulted to the grantor or her residuary legatee because of anything contained in or lacking from either the instruments of conveyance or the collateral agreements.

[2] The principal contention of the appellants seems to be that the former decree is res adjudicata here.

"A former judgment is not a bar to a subsequent action between the same parties if the subject matter involved in the two actions is not identical, although it may conclude the parties as to the issues actually litigated and determined. But identity of the subject matter is not alone a sufficient test. The true requirement is that the causes of action in the two suits shall be the same. Undoubtedly the subject matter involved in the two actions must be the same, for otherwise there could not be an identity of the causes of action; but the same transaction or state of facts may give rise to distinct or successive causes of action and a judgment upon one will not bar a suit upon another. Therefore a judgment in a former suit, although between the same parties and relating to the same subject matter, is

not a bar to a subsequent action, when the In re PRESS PRINTERS & PUBLISHERS, cause of action is not the same." 34 C. J.

811.

"Where the causes of action are separate and distinct, the judgment in the first action is conclusive only as to matters actually in issue and adjudicated. Subject to the rule just stated, it is held that rights, claims, or demands of the parties growing out of the same subject matter, but which were not put in issue or adjudicated in the former action, are not barred by the judgment therein. And a fortiori a judgment is not a bar to the litigation of any demand or cause of action which, from the nature of the case, the form of the action, or the character of the pleadings, could not have been adjudicated in the former suit." Id. 823.

"Where a deed, lease, or contract contains several covenants or undertakings, which are distinct and independent and have no connection with each other except that they all relate to the same general subject matter, the recovery of a judgment for a breach of one of them will not bar an action for a breach of another." Id. 847.

In these two cases there is no identity of subject-matter and the identity of parties is the result of mere accident or design, because any person was at liberty to take an assignment in whole or in part from the residuary legatee. The question of a resulting trust in favor of the grantor or her successors in interest was not in issue in the former case and was not decided. Indeed, it could not have been properly decided because the parties in interest were not before the court. In any suit or proceeding to establish a resulting trust in the properties in question, the grantor and the grantee or their successors in interest would be necessary and indispensable parties, and had the court in the former case attempted to decide that there was no resulting trust, the decision would not be binding upon the residuary legatee because she was not before the

court.

On the other hand, had the court decided that there was a resulting trust, the decision would not bind the appellee because every estoppel must be mutual, and, if one party is not bound, the other is not. But, as already stated, the question of a resulting trust was neither in issue nor decided in the former case.

Error is assigned in the admission of parol testimony on the part of the appellee, but, inasmuch as the appellants failed in their proof, the admission of such testimony could not constitute prejudicial error.

The decree of the court below is affirmed.

Inc.

Petition of BABCOCK PRINTING PRESS MFG. CO.

Circuit Court of Appeals, Third Circuit. December 22, 1927.

Bankruptcy

No. 3630.

sales

184 (234)-Conditional contract, not filed as required by state statute at time of bankruptcy, held void as against trustee (Conditional Sales Act N. J.; Bankr. Act, § 47a, cl. 2 [11 USCA § 75]).

Conditional sales contract which was void under Conditional Sales Act N. J. (P. L. 1919, p. 461), as against a lien creditor because not filed as required by such Act, held, under Bankruptcy Act, § 47a, cl. 2 (11 USCA § 75). void as against trustee in bankruptcy where bankruptcy of buyer and intervention of trustee occurred before contract was filed.

Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.

In the matter of the Press Printers & Publishers, Inc., bankrupt, in which the Babcock Printing Press Manufacturing Company filed a claim. From a decree affirming an order denying allowance of claim, petitioner appeals. Affirmed.

See, also, 4 F. (2d) 159.

A. P. Bachman, of New York City, for appellant.

Leon E. Cone, of Morristown, N. J. of (Harry Silverstein, of Newark, N. J., counsel), for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge. The Babcock Printing Press Manufacturing Company claims a sum of money received from the sale of a printing press and held by the trustee of the Press Printers & Publishers, Inc., Bankrupt. It first endeavored to collect its claim by mandamus, In re Press Printers & Publishers, Inc. (C. C. A.) 12 F. (2d) 660. Failing in that, it tried the claim before a referee in bankruptcy whose order denying its allowance was affirmed by the District Court on review. This appeal is from that decree.

The claimant entered into a contract with the bankrupt for the sale of a printing press at a stated sum, part cash and balance in periodical payments, title reserved in the seller and to pass by bill of sale to the buyer after full payment of the stipulated price

23 F.(2d) 34 and payment of an additional sum of two dollars.

The instrument, by its terms, is called a lease manifestly drafted so that it should fall within the laws of those states that recognize such contracts-and as a lease the claimant persists in describing it. Yet the referee and the District Court were satisfied, as are we, that the writing is a contract of conditional sale within the definition of the Conditional Sales Act of New Jersey, Act of 1919, chapter 210, par. 2 (P. L. p. 462); Lauter Co. v. Isenreath, 77 N. J. Law, 323, 72 A. 56; National Cash Register Co. v. Daly, 80 N. J. Law, 39, 76 A. 325; Rapoport v. Rapoport Exp. Co., 90 N. J. Eq. 519, 107 A. 822.

A conditional sale is valid or void under this New Jersey statute (by which this case is controlled) according as the parties conform or fail to conform to its requirements. Paragraphs 5, 6 and 10 provide that every provision in a conditional sale shall be void as to a creditor of the buyer, who, without notice, acquires by attachment or levy a lien upon the goods sold before the contract shall be filed as required, unless the contract is so filed within ten days after the sale is made; that the contract shall be filed in the office of the clerk of the county in which the goods are kept for use by the buyer; and that the filing officer shall mark upon the contract the day and hour of filing, and enter the names of the seller and buyer, the date of the contract, and the day and hour of filing, together with a description of the goods and the price, in a separate book properly indexed, and kept for that purpose. What happened was this:

About five months after its execution, the seller presented the contract in suit at the Morris County Clerk's office where it was recorded as a chattel mortgage in the chattel mortgage records of that office and then returned to the claimant. Whatever may have been the claimant's purpose in handing the contract to the clerk, the fact is it was not, then or later, marked filed, entered and indexed pursuant to the requirements of the Conditional Sales Act. The buyer after making several payments went into bankruptcy. With no rights of a purchaser from or a lien creditor of the bankrupt buyer intervening, the trustee took possession of the

press and sold it, and the original seller now claims the proceeds.

Two questions arise; one under the recording acts of New Jersey (see title "Conveyances," 2 Comp. St. 1910, p. 1532) the other under the Bankruptcy Act (11 USCA). Courts of New Jersey have construed such acts strictly, holding, for instance, that as the statute declares a chattel mortgage void as to creditors of the mortgagor unless it be recorded according to its terms, a chattel mortgage is, in law, void as to such creditors unless it is, in fact, recorded as required. Knickerbocker Trust Co. v. Penn Cordage Co., 65 N. J. Eq. (20 Dick.) 181, 55 A. 231; Id., 66 N. J. Eq. (21 Dick.) 305, 58 A. 409, 105 Am. St. Rep. 640. It was by analogy with this ruling that the District Court affirmed the referee holding the unfiled conditional bill of sale in issue void. In this we are constrained to agree. But the claimant insists that, even if the contract was not filed as required, the filing act does not avoid the instrument as between the parties when, as here, there was no creditor who, before bankruptcy, actually obtained a lien on the chattel sold. That might be true had not bankruptcy of the buyer followed and had not its trustee intervened between seller and buyer. With the contract of conditional sale not yet filed in compliance with the requirements of the Conditional Sales Act, the trustee came in with the rights of a lien creditor having an execution returned unsatisfied and with the right to enforce his claim against the chattel without showing that any particular creditor had in fact obtained a judgment against the bankrupt. Bankruptcy Act, § 47a (2). Interstate Banking & Trust Co. v. Brown (C. C. A.) 235 F. 32. The trustee was clothed with this right by section 47a (2) of the Bankruptcy Act as amended by the Act of 1910 (11 USCA § 75), the effect of which is to place the trustee, so far as his right to attack the validity of the instrument is concerned, in the same position as a creditor with a lien. For the purpose of attacking the conditional bill of sale, the trustee was a potential lien creditor. As the conditional bill of sale would, under the state law, be void against a lien creditor, it is likewise void against the trustee. In re O'Brien (D. C.) 215 F. 130.

The decree is affirmed.

REYNOLDS-WEST LUMBER CO. v.

TAYLOR.

Circuit Court of Appeals, Fifth Circuit. December 20, 1927.

No. 5132.

1. Master and servant 286 (3)-Negligence of master in failing to maintain safe place to work is ordinarily for jury.

Care required of employer is such as is exercised by prudent employers under similar circumstances, and whether in a particular case the employer exercised reasonable care in respect to the condition of a place where an employee was required to work is ordinarily a question for the jury.

2. Master and servant 286 (3)—Master's negligence in failing to maintain platform over which employee was required to pass in safe condition held for jury.

Plaintiff, in the course of his duties as an employee of defendant, was required to wheel lumber over a platform and stepping on a broken plank in the platform was thrown and injured. Planks in the platform were so frequently broken as to require frequent inspection in the exercise of ordinary care. Held, that the question of defendant's negligence was for

the jury.

3. Master and servant 233 (2)-Master, furnishing one passageway, cannot avoid liability for injury from defect by showing that enough room was left for safe passage.

Where plaintiff, in the course of his duties as employee of defendant in passing over a platform 40 feet wide, stepped on a broken plank and was injured, the fact that there was room for safe passage on either side of the broken plank held not to bar recovery.

In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.

Action at law by C. H. Taylor against the Reynolds-West Lumber Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William H. Watkins, of Jackson, Miss. (Watkins, Watkins & Eager, of Jackson, Miss., on the brief), for plaintiff in error.

Paul Dees, of Philadelphia, Miss., and Marion W. Reily, of Meridian, Miss. (Reily Marion W. Reily, of Meridian, Miss. (Reily & Parker, of Meridian, Miss., on the brief),

for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This was an action by the defendant in error to recover damages for personal injuries sustained while he was acting as an employee of the defendant in error. The parties are herein referred to by their designations in the trial court. The plaintiff's duties as an employee

included feeding lumber to a molding machine and moving lumber to that machine from a rough shed over an elevated platform or dock, by means of a two-wheeled vehicle called a dolly or buggy. The plaintiff charged that he was injured as a result of a broken plank in the floor of the platform giving way under him as he was going from the molding machine towards the rough shed to get lumber to be fed to the machine, and that injury was caused by the defendant's negligence in failing to keep the passageway in safe condition. Evidence adduced tended to prove the following:

As plaintiff was going with another employee in the daytime from the molding machine to the rough shed to get lumber to be moved to such machine, he stepped on a broken plank in the floor of the platform with the result that he fell and four of his ribs were broken. The plaintiff saw that broken plank a couple of days before he stepped on it and fell. In going from the machine towards the rough shed, he momentarily forgot or was unmindful of that defect in the platform floor: Planks in that platform were frequently broken by loaded dollies moving over them. When a break occurred the defect could be quickly remedied by removing the broken plank and putting another plank in its place. The distance over the platform from the molding machine to the rough shed was about 40 steps. The width of the platform between the side the machine was on and the side the rough shed was on was about 40 feet. Plaintiff could have avoided danger from the broken plank by keeping away from it in going over the platform from the machine to the rough shed. The defendant excepted to the refusal of the court to direct the jury to find in favor of the defendant, and to give the following instruction requested by

the defendant:

"You are instructed that, although you may believe that there was a defective plank in the platform, still, if you believe from the evidence that the plaintiff had a perfectly safe way of going to the dry shed without

stepping on said plank, and that he unnecessarily walked over and upon said plank when he had a perfectly safe way to walk, and by which he could have avoided injury, you will return a verdict for the defendant."

The defendant excepted to the following part of the court's charge to the jury:

"In determining whether or not the defendant used reasonable care to maintain a reasonably safe place for the plaintiff to work, you should take into consideration the

23 F.(2d) 36

nature of the duties to be performed by the plaintiff for the defendant, and the different places he was required to go or be, and the condition of the way along which he would travel in passing from one point to another in performing the duties required of him, and while passing from one point to another in the performance of such duties, the plaintiff was not required to pursue the most direct route, but he had the right to travel over and along any portion of the way made and provided for such travel."

There was judgment for plaintiff in the sum of $1,500, based on a verdict in his favor for that sum. The court's charge to the jury contained the following:

"The plaintiff was under the duty to use reasonable care to protect himself, and if you believe with the exercise of reasonable care plaintiff could have avoided stepping on the said plank, and that he was guilty of negligence in doing so, although you might return a verdict for the plaintiff, it would be your duty to deduct from his recovery that portion of the damages attributable to his own negligence."

Under the Mississippi statute the contributory negligence of an injured person does not bar a recovery, but requires that damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured. Hemingway's Annotated Mississippi Code 1927, § 516. In view of the nature of the injury and its consequences, which evidence adduced tended to prove, the amount of the verdict indicates that the jury found that plaintiff was guilty of contributory negligence, and that the damages to be awarded were diminished because of such contributory negligence.

[1,2] Evidence adduced was such as to furnish support for findings that the breaking of planks in the platform was such a frequent occurrence that the exercise by the defendant of reasonable care to maintain the platform in safe condition for the use of its employees called for frequent inspections, and that but for a failure to exercise reasonable care in that regard the broken plank would have been discovered by defendant in time to remedy the defect before plaintiff was injured. The care required of the employer is such as is exercised by prudent employers under similar circumstances, and whether in any particular case the employer has exercised reasonable care in respect to the condition of a place where employees are

required to perform services is ordinarily a question for the jury's determination. 18 R. C. L. 594. We are of opinion that under the evidence it was open to the jury to find that the defendant was chargeable with negligence in failing to discover and remedy the defect in the platform before plaintiff was injured in consequence of the existence of that defect, and that the court did not err in refusing to direct a verdict in favor of the defendant.

[3] The evidence showed that the platform was a passageway furnished by defendant for use by the plaintiff in the performance of his duties. The evidence did not show that in going from the molding machine to the rough shed the plaintiff was required or expected to follow a route different from the one he was following when he was hurt. At most, plaintiff's failure to avoid a known danger in the one passageway furnished for his use was contributory negligence, and was not a use of a dangerous passageway, when a different and safe one was furnished for his use. One who is under a duty to furnish a safe passageway, and furnishes only one passageway, cannot escape liability for a negligent failure to maintain that one passageway in safe condition by showing that, notwithstanding the existence of the dangerous defect, enough room was left for a safe passage by one who was mindful of the danger and could avoid it.

One using a sidewalk or other way provided for his use may be guilty of negligence in failing to avoid a dangerous defect negligently permitted to remain therein, but the fact that enough of the way remains in good condition for a safe route over it to be available cannot properly be given the effect of converting the one way into two, one safe and the other dangerous, with the result that the party responsible for the condition of the way is under no duty to one who in using the one way failed to select a safe route over it. As applied to the evidence in the instant case the effect of the above set out refused instruction was to require a verdict for the defendant, if the plaintiff was guilty of contributory negligence in using the one passageway furnished for his use. What has been said indicates the grounds of the conclusions reached that the court did not err in refusing to give that instruction, or in giving the above set out part of its charge to the jury.

The record shows no reversible error. The judgment is affirmed.

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