In re HAESELER-KOHLHOFF CARBON CO. (District Court, E. D. Pennsylvania. March 2, 1905.) No. 1,991. BANKRUPTCY-DISMISSAL OF INVOLUNTARY PETITION-COSTS. Costs will be allowed to an alleged bankrupt on dismissal of an involuntary petition against him only after the filing of his bill of costs with the clerk and notice to the petitioning creditors. In Bankruptcy. On motion for allowance of costs. Joseph Hill Brinton, for petitioning creditors. HOLLAND, District Judge. In this case an involuntary petition in bankruptcy was filed against this company for certain reasons alleged therein, and the matter was referred to a referee for the purpose of ascertaining the facts and to make report thereon. The referee found against the petitioning creditors, and recommended that the petition be dismissed, at the cost of the petitioners; and further states in his report that costs to the amount of $28.10 were paid by the alleged bankrupt. Counsel for the alleged bankrupt now asks this court to make an order directing the petitioning creditors to pay these costs. and an additional sum of $20 counsel fee. Before the alleged bankrupt is entitled to this order it is necessary, under the practice as heretofore followed, that he should file his bill of costs with the clerk, and give the petitioning creditors notice of the filing of the same and the amount thereof, who will be entitled to a hearing on the question of their liability for the amount claimed, or any part thereof. This petition to direct the payment of costs is therefore refused for the present. THE REED BROS. DREDGE NO. 1. (District Court, S. D. New York. March 2, 1905.) MARITIME LIENS-REPAIRS Made on Order of OwNER. There is no lien on a vessel for repairs made in a foreign port on the order of the owner, not the master, in the absence of an agreement therefor, even though the person making them relied on the credit of the vessel. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Maritime Liens, 46.] In Admiralty. Suit in rem to enforce lien for repairs. Powell & Cady, for libellant. Henry W. Baird and Martin A. Ryan, for claimant. ADAMS, District Judge. This action was brought by the Coulter & McKenzie Machine Company against the Reed Brothers' Dredge No. 1, to recover the balance of an amount incurred for repairs at Bridgeport, Connecticut, in March and April, 1903. There is no question about the work having been done. The action is defended upon the ground that there was no lien. It appears that the dredge belonging in New York was being used in the harbor of Bridgeport and was repaired by the libellant to the extent of $441.28 in that harbor at the instance of the owners. In April, 1903, a payment of $50 was made and in April of 1904, a further payment of $150, leaving due the sum of $241.28, for which a lien on the dredge is now claimed. The arrangements for the work were made between the Vice President and Treasurer of the libellant and Reed Brothers, who were in Bridgeport in advance of the arrival of the dredge, but nothing was said about a lien. The work was done in a foreign port, and if it had been contracted for by the master of the vessel, would have made a prima facie case of a lien but the libellant's difficulty is, that it contracted with the owners, without making any arrangement for a lien and the fact that no lien was contemplated is shown, to some extent, by the two payments made by the owners as appears above. No lien can be sustained under the circumstances of this case. It would not matter if the libellant intended to rely upon the credit of the dredge, of which the charge in their books. is but slight evidence. The Samuel Marshall, 54 Fed. 396, 403, 4 C. C. A. 385; The Iris, 100 Fed. 104, 40 C. C. A. 301; Prince v. Ogdensburg Transit Company (C. C.) 107 Fed. 978. It has been said by the Circuit Court of Appeals for this circuit on the question of lien, in The George Farwell, 103 Fed. 882, 883, 43 C. C. A. 373: "(5) Where supplies and repairs are ordered in a foreign port, not by the master, but by the owner, there must be some affirmative evidence to show that the credit of the ship was pledged as security for payment." Libel dismissed. In re MILLER & BROWN (1). (District Court, M. D. Pennsylvania. March 14, 1905.) No. 549. BANKRUPTCY-RECOVERY OF GOODS-SALES ON CONDITION. Where claimant sold certain goods to a bankrupt firm, who were entitled to sell the goods at their discretion, their only obligation being to pay the price on sales made, or return the goods, the transaction amounted to nothing more than a contract of "sale and return," and the claimant was not entitled to recover the goods unsold as against the firm's trustee in bankruptcy. In Bankruptcy. Sur petition of the Magee Carpet Company for order on trustee to turn over property. Philip B. Linn, for petitioners. Andrew A. Leiser and W. R. Follmer, for trustee. ARCHBALD, District Judge. In cases of this character the local law governs, the title of the trustee being determined by the question whether the arrangement with regard to the property is good as against creditors. If it is, the property may be reclaimed; but, if not, it cannot be. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; In re Butterwick, 12 Am. Bankr. R. 536, 131 Fed. 371. The decisions upon the subject in Pennsylvania are numerous, but they uniformly and consistently hold that, where goods are found in the possession of a debtor, to whom they have been duly transferred by negotiation with the owner, they are liable to creditors, unless a trust or bailment can be shown. A sale upon condition is not enough. It will be sufficient to refer for this to Ott v. Sweatman, 166 Pa. 217, 31 Atl. 102, where the cases are collated and reviewed. In the present instance the bankrupt firm, desiring to obtain an assortment of carpets and rugs or art squares in anticipation of the opening of the fall term of Bucknell University at Lewisburg, Pa., where they were engaged in business, Mr. Brown, one of the members, on September 14, 1904, called at the mill of the Magee Carpet Company, the present petitioners, at Bloomsburg, Pa., where he met Mr. Magee, the manager, and stated his errand. There had been previous dealings between the parties, and a balance of account against the firm of $161.64 had been standing unpaid since May previous. Mr. Magee called attention to this fact, and said that they did not care to increase it by any further credit; but he was assured by Mr. Brown that, according to the instructions of his partner, who looked after that end of the business, a check would be forthcoming the next week-a promise which, it may be noted in passing, was kept. Mr. Brown further explained that the university would open shortly, and that they always had calls from the students who were fitting up their rooms for a certain grade of carpets and art squares; and after selecting two rolls of carpet Mr. Magee agreed to make a further assortment of carpets and squares and ship them to him, upon the understanding that what the firm sold should be paid for, and what they did not could be returned. The goods to the amount of $319.68 were sent in a few days, and it is for the unsold portion of this consignment that claim is now made. The question is whether, under the circumstances, title passed as against creditors. The petitioners contend, and Mr. Magee so testifies, that the goods were sent strictly on memorandum or approval, and not sold, the title to remain in them except as sales were made; and in confirmation of this the daily scratchbook, in which the order was entered, is produced, where the word "Mem." appears at the head of the bill. There is nothing, however, in the salesbook or the ledger to characterize the transaction as other than a straight sale, and in the invoice which was sent to Miller & Brown along with the goods they were charged at the regular prices, the same as they would have been if that was the case. This is not, of course, conclusive (Dows v. National Exchange Bank, 91 U. S. 618, 23 L. Ed. 214; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093), although not without a certain weight (Chapman v. Kerr, 80 Mo. 158). Neither was anything said at the time as to the prices at which the goods should be sold by the bankrupts to their customers, the only condition asserted or relied upon being that such of them as were should be paid for, and the rest returned. According to Mr. Magee, the return was to be at the expense of the carpet company; but this is a mere assumption, for he admits that nothing was said. Mr. Brown, on the other hand, testifies-and I accept his statementthat the firm were to pay the freight in case of a return, and that, in order to entitle them to do so, the property was to be in good condition; and the privilege, according to his recollection, was to be exercised with in 30 days. The shipment was received at the store September 18th, and the goods were at once put into the carpet department, along with the other stock on hand, and sales were made from time to time therefrom to the extent, at invoice prices, of $19.80, of which, however, no separate account was kept. The matter ran along in this way until October 21st, when the store was closed by the sheriff upon execution, and on October 27th a voluntary petition in bankruptcy was filed. It is not clear from the evidence whether the arrangement on which the petitioners rely extended to the carpets as well as the art squares; Mr. Brown testifying that he bought two rolls of the former before it was suggested by Mr. Magee that he would make up an assortment of rugs or art squares, from which selections could be made by the students, and the balance be returned. Neither does it altogether appear that the transaction took on this form for the benefit of the carpet company, so that they might be protected in parting with their goods, any more than to relieve Miller & Brown from loading up with and carrying unneeded stock. The advantage to himself was probably in the mind of each party. But, however that may be, and assuming that the condition extended to the whole order, carpets as well as rugs, the result must be the same. It constituted nothing more than what is known in the law as a contract of "sale or return," in which the title passes to the party to whom the goods are delivered, subject to the exercise of the option to return them if he so desires. Moss v. Sweet, 16 Q. B. 493; Hunt v. Wyman, 100 Mass. 198; Hickman v. Shimp, 109 Pa. 16. This, it is true, is not the case where the party has the option of returning the goods if they prove unsuitable or unsatisfactory, of which he is necessarily the judge, the consignee there holding as bailee for the time within which he is called upon to declare his purpose with regard to them, which, if unspecified, must not exceed what is reasonable. Butler v. School District, 149 Pa. 351, 24 Atl. 308. But where the right to return does not depend upon any such consideration, but upon the mere will of the consignee, however moved, the transaction is a sale, and the title vests (24 Am. & Eng. Encycl. Law [2d Ed.] 1024); and that is the situation here. It is not like the case of McCullough v. Porter, 4 Watts & S. 177, 39 Am. Dec. 68, where the goods were to be sold on account of the party consigning them, for not less than the invoice prices, and the proceeds remitted to the extent of these prices, the party to whom they were consigned retaining all above that as his commission. Such an arrangement clearly created the relation of principal and factor, and constituted a bailment, the title to the goods remaining in the consignor until they were sold, and the money received being his, less the commissions earned by the other party. This was nothing more nor less than the case of one person putting his property into the hands of another for the purpose of sale. Neither is there any similarity to the case of the Keystone Watch Co. v. Bank, 194 Pa. 535, 45 Atl. 328, where the transaction was hedged about with the very stringent provisions that the goods consigned should only be sold at certain scheduled prices, and the proceeds at once remitted, and that all sales should be made by the consignees as agents, and so billed on special billheads, the owner also reserving the right to terminate the arrangement at any time and take back the goods. In the present in stance, however, the property passed into the hands of the bankrupts to be disposed of in whatever way, at whatever prices, and upon whatever terms they chose. It was mingled with their other store stock without distinction, and without any right of direction or control from the carpet company, whose only claim was to be paid the prices at which it had been shipped. This made it to all intents and purposes a sale (Braunn v. Keally, 146 Pa. 519, 23 Atl. 389, 28 Am. St. Rep. 811), which is not affected by the provision that whatever was not sold was to be returned. Whether we regard this as a privilege in favor of the bankrupts or a condition on which the property was parted with, it passed title for the time being, and before advantage had been taken of it the rights of creditors had supervened. The petition is dismissed, with costs. In re MILLER & BROWN (2). (District Court, M. D. Pennsylvania. March 14, 1905.) No. 549. BANKRUPTCY-SALE OF GOODS-BAILMENT-RECLAMATION. Claimant's salesman applied to a bankrupt firm for an order for ribbons, and, the buyer being absent, the other member of the firm gave a small order, subject to the approval of the buying member after the goods were received. The goods shipped were considerably more than was ordered, and on receipt of them the buying member of the firm picked out those he wished to retain, which were separated from the others, and placed in stock, the balance being left in the original packages, set by themselves, and marked on the bills as "to be returned"; but before anything was done with them, and within a little more than a week after they were received, the stock, including the ribbons, was levied on by the sheriff and turned over to the firm's trustee in bankruptcy shortly thereafter, Held, that the transaction as to the ribbons to be returned was a bailment, and not a "sale and return," and that the seller was therefore entitled to recover the same from the firm's trustee. In Bankruptcy. Sur petition of Pollock & Caskel for order on trustee to turn over property. Philip B. Linn, for petitioners. Andrew A. Leiser and W. R. Follmer, for trustee. ARCHBALD, District Judge. The general principles which govern in cases of this character have been discussed in disposing of the petition of the Magee Carpet Co., 135 Fed. 868, and do not need to be repeated here. The facts upon which the case turns are not disputed. About October 1, 1904, in the absence of Mr. Brown, the member of the firm who did the buying, Mr. Pollock, one of the petitioners, called at the store of the bankrupts in Lewisburg, Pa., and solicited an order for ribbons. Mr. Miller, the other member of the firm, who was present, authorized the young lady in charge of that department to make out a list of the things which she thought were needed, which she did, and it was agreed between Mr. Miller and Mr. Pollock that these should be sent, subject to the |