Opinion
11-27-1925
DEPEW v. C. W. DEPEW & CO. et al.
Richard M. Glassner, of Newark, for the motion. Grossman & Kwalick, of Elizabeth, for receiver.
(Syllabus by the Court.)
Suit by Calvin M. Depew against C. W. Depew & Co. and others. On motion to direct the receiver of defendant company to return goods sold on conditional bill of sale. Motion granted.
Richard M. Glassner, of Newark, for the motion.
Grossman & Kwalick, of Elizabeth, for receiver.
BACKES, V. C, The receiver has in his possession two Mack trucks, sold to the defendant company by the Mack International Motor Truck Company under a conditional bill of sale. The first of the eighteen monthly installments was paid. Those due since are in default. The receiver declines to pay, and refuses to surrender the trucks, because a copy of the conditional bill of sale, filed in due form and in the proper public office, did not bear the signature of the president of the defendant company, as did the original. His claim is that it is not a true copy. It is assumed, not decided, that the copy is defective. No creditor of the defunct company had a lien by "attachment or levy" upon the trucks when the receiver was appointed.
The conditional sale was good against the company without the filing of a copy of the contract. It is void, if not filed, only as against purchasers without notice and creditors who acquire liens "by attachment or levy." 2 Comp. St. Supp. 1911-1924, p. 3130, § 182-91. The receiver stands in the shoes of the company. As the company could not attack the contract, he cannot. Koerner v. U. S. Waxed Co., 94 N. J. Eq. 655, 121 A. 338; Falaenau v. Reliance Steel Foundry Co., 74 N. J. Eq. 325, 69 A. 1098; Smith v. Hotel Ritz Co., 74 N. J. Eq., 616, 70 A. 137.
The receiver will be ordered to hand over the property.