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fore arose against Wirth during his life as to that property which he had not disposed of. This suit was commenced within six years after his death, when for the first time any cause of action as to the property so remaining arose. Section 4085 of the Revised Laws of Minnesota has no bearing upon this case. It was intended by this section to lengthen, not to shorten, the limitation provided for in the general law. Wilkinson v. Winne, 15 Minn. 159, 160 (Gil. 123).

The defendant finally says that there is a want of equity in the bill, and discusses it from the standpoint of a bill for specific performance, which in fact complainant himself calls it. It is of little importance what name is given to a suit. If it appears that the complainant is entitled to equitable relief, that relief should be given to it, regardless of the name that is given to the bill. The facts show that the complainant at the death of Wirth was the owner of all the property left by him. It was the legal owner of all the title to which did not stand in Wirth, and as to that which Wirth had in his name it was the equitable owner. The suit seems to be one to enforce the equitable ownership rather than one to compel specific performance.

A decree will be entered dismissing the cross-bill. As to the property not in the possession of or under the control of the administrator a decree will be entered substantially as prayed for in the bill. As to the property which is in the possession of the administrator other questions arise. Such property being in the possession of the administrator is in the possession of the probate court of Minnesota, and this court cannot interfere with the possession of that court. See cases cited in Pulver v. Leonard (C. C.) 176 Fed. 586-589; Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 46, 30 Sup. Ct. 10, 13, 54 L. Ed. . In the case last cited it was said:

"The United States Circuit Court, by granting this relief, need not interfere with the ordinary settlement of the estate, the payment of the debts and special legacies, and the determination of the accounts of funds in the hands of the executor, but it may, and we think has the right to, determine as between the parties before the court the interest of the complainant in the alleged lapsed legacy and residuary estate, because of the facts presented in the bill. The decree to be granted cannot interfere with the possession of the estate in the hands of the executor while being administered in the probate court, but it will be binding upon the executor, and may be enforced against it personally. If the federal court finds that the complainant is entitled to the alleged lapsed legacy and the residue of the estate, while it cannot interfere with the probate court in determining the amount of the residue arising from the settlement of the estate in the court of probate, the decree can find the amount of the residue, as determined by the administration in the probate court in the hands of the executor, to belong to the complainant, and to be held in trust for her, thus binding the executor personally, as was the case in Payne v. Hook, 7 Wall. 425 [19 L. Ed. 260], and Ingersoll v. Coram, 211 U. S. 335 [29 Sup. Ct. 92, 53 L. Ed. 208], supra. It is to be presumed that the probate court will respect any adjudication which might be made in settling the rights of parties in this suit in the federal court. It has been frequently held in this court that a judgment of a federal court awarding property or rights, when set up in a state court, if its effect is denied, presents a claim of federal right which may be protected in this court."

A decree will therefore be entered declaring that the Order of St. Benedict of New Jersey is the sole owner of the amount of the residue of the property, as determined by the administration in the probate

court, in the hands of the administrator, and declaring that such residue be held in trust for the complainant.

The decree will also provide that when such residue is discharged from all claims of administration, and is ready for distribution to the persons thereto legally entitled, the administrator pay it to the complainant.

The decree will also enjoin the administrator from paying such residue to any of the heirs, or to any person other than the complain

ant.

Costs will be allowed to the complainant.

In re PITTSBURGH INDUSTRIAL IRON WORKS.
(District Court, W. D. Pennsylvania. April 16, 1910.)

No. 3,781.

1. SALES ( 55*)—WHAT LAW GOVERNS-PLACE OF DELIVERY.

A contract for the sale of goods is to be construed in accordance with the law of the place where delivery is to be made or the contract to be performed.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 2, 153; Dec. Dig. § 55.*]

2. SALES (201*)-DELIVERY TO CARRIER-VESTING OF TITLE.

In general, in the absence of a stipulation, title vests in the buyer on delivery of the goods to the carrier for transportation.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 535; Dec. Dig. § 201.*]

3. Sales (§ 55*)—Delivery F. o. b.-What Law Governs.

Where a contract for the sale of goods provided for delivery f. o. b. cars at Detroit, Mich., and consigned to the buyer, the contract would be governed by the law of Michigan.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 2, 153; Dec. Dig. § 55.*]

4. SALES (82*)-TERMS-SALE for Cash.

Unless time is stipulated in a contract of sale, the sale is for cash. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 230; Dec. Dig. § 82.*]

5. SALES (8 469*)—CASH ON DELIVERY-RETENTION OF TITLE.

Where goods were sold under a contract "price $1,160, f. o. b. cars, Detroit, Mich.," and there was nothing to show that any time for payment in the future was contemplated, but the invoice was marked "terms cash" and "title to the property in this invoice reserved in car company until full payment made," payment of the price was a condition precedent to the passing of title to the buyer unless waived.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 1357; Dec. Dig. § 469.*]

6. BANKRUPTCY (§ 140*)-BANKRUPT'S TRUSTEE-TITLE TO PROPERTY CONDITIONALLY SOLD.

Under the rule that a bankrupt's trustee acquires only such title as the bankrupt had, the trustee acquired no title to property sold to the bankrupt under conditional sale reserving title until the price had been paid; the condition not having been complied with.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. 199; Dec. Dig. § 140.*]

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

7. SALES (472*)-CONDITIONAL WILLS-TRANSFER OF PROPERTY-RIGHTS OF

TRANSFEREE.

Where title to a derrick car sold under a conditional sale never passed to the buyer because of nonfulfillment of the condition, the buyer's transferee thereof, under the law of Michigan, acquired no right superior to the seller.

[Ed. Note.-For ather cases, see Sales, Cent. Dig. § 1371; Dec. Dig. § 472.*]

8. PLEDGES (§ 2*)-CONTRACT-WHAT LAW GOVERNS.

A contract of pledge made in Pennsylvania must be construed according to the law of that state.

[Ed. Note. For other cases, see Pledges, Cent. Dig. § 2; Dec. Dig. § 2.*]

9. BANKRUPTCY (§ 188*)-PLEDGED PROPERTY-VALIDITY OF PLEDGE-POSSESSION.

Where, during the construction and equipment of a derrick car by the bankrupt, it assigned not only the account of the purchaser therefor but the car and equipment, to secure an advancement of the entire purchase price before delivery of the car to the buyer, by which it was subsequently refused for noncompliance with specifications, and the pledgee after bankruptcy acquired possession from the carrier in replevin, the pledge was not invalid under the Pennsylvania law, because possession was not delivered to the pledgee by the bankrupt as against the bankrupt's trustee who never acquired possession.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 188.*] 10. BANKRUPTCY (§ 188*)-ADMINISTRATION OF ESTATE-EQUITABLE LIENS.

A bankrupt, having obtained an order for a railroad derrick car, purchased the car from a foundry company under a conditional contract of sale. It obtained possession without making payment, and while engaged in equipping the car sold and assigned the account against the prospective purchaser, as well as the car, to a bank for an advancement of the full purchase price to enable, it to finance and complete the transaction; the purchaser having agreed to pay, to the bank any amount that should be due the bankrupts pursuant to the sale. Held that, the car having been refused by the purchasers for alleged noncompliance with specifications, the bank was entitled to an equitable lien on the equipment to se cure its advances, regardless of the validity of the pledge.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 188.*]

11. BANKRUPTCY (§ 188*)-EQUITABLE LIENS-VALIDITY.

An equitable lien, having been acquired more than four months before the filing of a bankruptcy petition, was not invalidated thereby.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 188.*]

In matter of bankruptcy proceeding against the Pittsburgh Industrial Iron Works. Proceedings for the determination of certain liens and the ownership of a derrick car as between the trustee, the First National Bank of Huntingdon, and the American Car & Foundry Company. Judgment for car and foundry company and the bank.

R. T. M. McCready, for trustee.

S. S. Mehard, for American Car & Foundry Co.

Lazear & Blaxter, for First Nat. Bank of Huntingdon.

YOUNG, District Judge. This case comes before us upon the pleadings and agreement of facts and stipulation of counsel for the parties interested, which appear from the record to be the Guaranty Title & Trust Company, trustee of the bankrupt; the First National

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Bank of Huntingdon, which claims certain property set forth in the agreement as having been sold or pledged to it as security for its debt; and the American Car & Foundry Company, which claims certain property set forth in the agreement of facts as its property.

It appears by the agreement of facts that prior to January 1, 1907, the Pittsburgh Industrial Iron Works, the bankrupt, contracted with the Detroit River Tunnel Company to furnish it a certain steel flat derrick car and equipment, and that on or about March 26, 1907, while the bankrupt company was engaged in the manufacture and erection of the equipment for said derrick car, it procured the discount by the First National Bank of Huntingdon of its promissory note for $5,125, and received that sum as the proceeds thereof, and that, at the time of the discounting of that note, the bankrupt executed and delivered to the bank what it alleges is an assignment of the car and its equipment and of the money to be paid for the car and equipment by the tunnel company. That on March 6, 1907, the bankrupt, having arranged for the discounting of the note by the bank, gave the Detroit Company notice in writing to pay the sum of $5,125 to the bank instead of to the Pittsburgh Industrial Iron Works, and that the Detroit Company notified the bank that it would pay the money upon said contract to the bank. It also appears from the agreement of facts that on April 3d the derrick car and equipment were tendered to the Detroit Company, which refused to accept them because they were not satisfactory under the contract, the same being returned to the Industrial Company on May 17th, and that the car and equipment remained in the possession of the Industrial Company for alteration and testing until August 15, 1907, when the car and equipment were again shipped to the Detroit Company, and finally refused by the Detroit Company on October 28, 1907. It also appears that the Huntingdon Bank, on January 17, 1908, after the filing of the petition in bankruptcy, obtained possession of the car with its equipment upon a writ of replevin, and upon the filing of its bond in that action in the courts of Michigan.

It also appears from the agreement of facts that the American Car Company of St. Louis intervened in the replevin proceedings and claims to be the owner of the car apart from the equipment, by virtue of the following state of facts: The Industrial Iron Company, on September 4, 1906, by its letter requested the American Car & Foundry Company to build it a steel flat car therein described; these words being found in the order: "Price. Eleven hundred sixty ($1,160.00) dollars, f. o. b. cars, Detroit, Mich." That the order was accepted by the American Car & Foundry Company, the car constructed, and on March 13, 1907, shipped from the car company's plant at Detroit, consigned to the Industrial Company at Reynoldsville, Jefferson county, Pa. And that upon the same day an invoice in triplicate was made by the car company, which contains these words, among others: "Title to property in this invoice reserved in car company until full payment made." "Terms, cash." And upon March 22, 1907, mailed one of the invoices, with a letter, to the Industrial Iron Works. The Industrial Iron Works obtained possession of the car at Reynoldsville

without paying the price agreed upon therefor, to wit, $1,160, or any part thereof, and that the whole is still unpaid and owing by the Pittsburgh Industrial Iron Works to the American Car & Foundry Company.

It also appears from the agreement of facts that, after the delivery of the car to the Industrial Company, that company equipped the car with boilers, engines, and derrick, which was substantially completed on April 3, 1907. It also appears that the American Car & Foundry Company did not consent or in any way sanction the transaction between the Industrial Company and the National Bank of Huntingdon.

It appears from the record that a petition in involuntary bankruptcy was filed against the Pittsburgh Industrial Iron Works on November 9, 1907, and on November 14, 1907, J. M. Stoner, Jr., was appointed receiver of the estate.

Under this agreement of facts and the stipulation of counsel for these parties the court is asked to determine the following questions. What the rights of the several parties are: First, as to the car; second, as to the equipment thereof; third, as to each other; and, fourth, as to the estate of the bankrupt?

First, as to the car: The contract was made in Michigan, and the car was to be delivered f. o. b. cars at Detroit. The delivery was complete at Detroit. In Brown v. Hare, 3 H. & N. 484, Pollock, C. B., speaking for the court, said:

"In many mercantile contracts it is stipulated that the seller shall deliver the goods 'f. o. b.' The meaning of these words is that the seller is to put the goods on board at his own expense or on account of the person for whom they are shipped and the goods are at the risk of the buyer from the time they are so on board."

The general rule of contracts is that the law of the place where the delivery is to be made or performed must control. Benjamin on Sales (5th Ed.) 682; Phila. Ry. Co. v. Wireman, 88 Pa. 264; Johnson v. Stoddard, 100 Mass. 306.

In general, when goods are left with a carrier, in the absence of a stipulation, the title vests in the vendee upon delivery to the carrier. Schmertz v. Dwyer, 53 Pa. 335; Garbracht v. Commonwealth, 96 Pa. 449, 42 Am. Rep. 550; Carlisle & Finch Co. v. Sand Co., 20 Pa. Super. Ct. 378. It thus appears that the contract having been made by the vendor in the city of Detroit, and the goods having been delivered to the carrier f. o. b. cars Detroit, and consigned to the vendee, the law of the state of Michigan must govern the contract. Hartford Insurance Co. v. Railway, 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84.

Under this contract, then, governed by the law of the state of Michigan, may the American Car & Foundry Company claim title against the Pittsburgh Industrial Iron Works? It appears, as we have seen, that the Industrial Iron Works, by its letter of September 4th, ordered the car from the American Car & Foundry Company, at the price of $1,160, f. o. b. cars, Detroit, Mich. So far as the record shows, this was the whole contract. The car company accepted the contract, and on March 13, 1907, as shown by its invoice, delivered the car f. o. b. its works, Peninsular Plant; the invoice showing terms cash, and

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