
    In re ABT et al.
    (District Court, W. D. Pennsylvania.
    March, 1924.)
    No. 10945.
    Bankruptcy @=>140(1) — Bankrupt purchaser of truck may not, by agreement with seller, change sale into bailment contract.
    As trustee stands in position of execution creditor, where bankrupt acquired possession of motor truck under sale agreement, he could not subsequently, by agreement with seller, convert sale into bailment contract, and seller, who has acquired possession under such bailment contract, may be required to redeliver to trustee.
    In Bankruptcy. In the matter of Harry 'A. Abt and Frank W. Cook, doing business as the Economy Garage. On review of referee’s order directing Hare & Chase, Inc.,, to deliver a motor truck to trustee.
    Findings affirmed.
   SCHOONMAKER, District Judge.

This is a summary proceeding to compel Hare & Chase, Inc., to deliver to the trustee a motor truck, which that company had obtained possession of by replevin suit after adjudication in bankruptcy, and now come to the-court on petition to review the finding and order of the referee, directing them to deliver the truck in question to the trustee. The question involved is whether the, bankrupts in the first instance obtained the truck-in question by purchase or by lease under a bailment contract.

It appears that on or about September 1,. 1922, the bankrupts made a deal with the agent of the Thomart Motor Truck Company, of Kent, Ohio, for the purchase of a motor truck, and that on October 12,. 1922, F. W. Cook, of the bankrupt firm, went to Kent and concluded the deal, by which he purchased the truck, paid $225 down in cash, gave the firm’s note for $275 to apply on the purchase price, and then took delivery of the truck, and at the same-time agreed in writing “to sign papers for-balance of selling price.” The contract up to this time was clearly one of sale and purchase. The next day the Thomart Motor Truck Company mailed the bankrupts at Erie an invoice of the sale, by which it appears that they construed the deal as a sale. Then, ■ shortly afterwards, in pursuance of' the memorandum written at the time of the sale on October 11, 1922, the parties executed and delivered a conditional sale contract, dated October 14, 1922, conveying the truck in question. This contract was assigned by the Thomart Motor Truck Company to Hare- & Chase, Inc., the present claimants of the truck in question. Again, later, on the allegation that the execution of the conditional sale contract was a mistake, the .parties substituted a bailment contract for the conditional sale contract, which was also assigned to Hare & Chase, Inc.? and by virtue of which they are now claiming the truck in question.

Undoubtedly the parties have the right, as • between themselves, to make and change ■ their contracts as they desire; but there can. be no doubt in the first instance that they made a sale contract, and that by virtue thereof the truck in question was delivered to the bankrupt firm. As the trustee stands under the act of Congress in the position of an execution judgment creditor, there is no doubt but that the subsequent attempt on the part of the parlies to convert the sale into bailment contract was abortive, and that the referee was clearly right in Ms findings, and that his order on Hare & Chase, Ine., for the delivery of the truck should be affirmed.  