In the Matter of Midwest Airmoving Corp., Bankrupt.noll Equipment Company, Defendant-appellant, v. Theodore R. Spilka, Plaintiff-appellee, 277 F.2d 792 (6th Cir. 1960)

Stanley B. Wiener, Howard L. Sokolsky, Cleveland, Ohio, for appellant.

Theodore R. Spilka, Marvin L. Gardner, Roemisch, Wright & Zimmerman, Cleveland, Ohio, for appellee.

Before CECIL and WEICK, Circuit Judges, and HOLLAND, Senior District Judge.

This cause is on appeal from an order of the United States District Court for the Northern District of Ohio, Eastern Division, whereby the District Judge affirmed an order of the Referee in Bankruptcy. The order of the Referee held that a certain instrument denominated a lease was in fact a conditional sales contract; that it had not been recorded in the county wherein the machinery which was the subject of the contract was located, in accordance with the requirements of Section 1319.11, Ohio Revised Code; that by reason thereof the vendor, Noll Equipment Company, had no lien on the machinery in question; and that the trustee in bankruptcy was entitled to the proceeds of the sale of said machinery for the benefit of the creditors of the bankrupt, Midwest Airmoving Corporation.

The appeal was submitted to the Court upon the record, including the Findings of Facts, Conclusions of Law and Memorandum of the Referee, and the order of the District Judge on Petition to Review, the briefs and oral arguments of counsel.

Upon consideration whereof the Court finds that under the law of Ohio a factual question is presented to be determined from the intention of the parties and all the facts and circumstances surrounding the transaction in question; that the facts as found by the Referee are supported by the evidence and are not clearly erroneous; and that the conclusions of law drawn by the Referee are correct.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be and it is hereby affirmed.

Section 110, sub. c, Title 11 U.S.C.A. On conditional sales contracts see: Unitype Co. v. Long, 6 Cir., 143 F. 315; Potter Mfg. Co. v. Arthur, 6 Cir., 220 F. 843; In re Pickett, 37 Ohio Law Rep. 153.

HOLLAND, J., dissents.