In re Pierce , 157 F. 757 ( 1907 )

HOOK, Circuit Judge

(after stating the facts as above). The contract under which the property in controversy was delivered by the Deere & Webber Company to the bankrupt was one of bailment for sale. The title remained in the petitioner. That a trustee in bankruptcy has no greater right or title than the bankrupt had has been so often declared in cases like this and in cases of conditional sale that citations are unnecessary.

It is contended that the company was estopped from asserting its title because its agent petitioned the court of bankruptcy for the appointment of a receiver to take possession of the bankrupt’s stock of merchandise, including the property in controversy, and to preserve the same. The petition, which was in the form of an affidavit, set forth that the bankrupt had closed his place of business, that, as affiant was advised, no one was in charge of the same, and that it was advisable that some one be appointed to take possession to inventory and insure the merchandise and to collect the notes and accounts. It was also stated that the bankrupt was indebted to the company in a large sum for goods sold him under contracts of conditional sale, and that there was a large portion of like goods belonging to it then in the bankrupt’s place of business. As a general creditor, the company was clearly interested in the preservation of the property of the bankrupt, and it was also interested in the preservation of that which it claimed to own. There is nothing inconsistent, between the application for the appointment of a receiver under the circumstances and the continued assertion of ownership of part of the property then in the bankrupt’s place of business. There was an express assertion of title in the moving paper. The alternative open to the company was the seizure of its property in the absence of a custodian. Its course was commendable, and it waived none of its rights by adopting it.

It is contended that the petition to the bankruptcy court is fatally defective because the property claimed was not specifically described. It is not necessary in cases of this sort that the property claimed be described with that degree of definiteness and particularity that is required in a complaint and writ in an action in replevin. It not infrequently happens that the claimant is unable to give in the first instance more than a general description of his property, and is compelled to rely upon the proofs at the hearing for its separation from other property of similar kind. A court of bankruptcy exercising equity powers may be depended upon to see that justice is done, and that no more is secured by the claimant than he is entitled to. Moreover, in the present case there were attached to the petition of the company invoices in which the property delivered under the contract was described minutely and in detail, and reference was made to them in the body of the petition. The order of the referee directing surrender to the claimant contained a like reference. This was sufficient in a case of this character.

The petition to revise is denied.