In the Matter of Nunnemaker Transportation Co., Inc., William P. Grover, Trustee v. United California Bank

456 F.2d 28 10 UCC Rep.Serv. 468 In the Matter of NUNNEMAKER TRANSPORTATION CO., Inc., William P. Grover, Trustee, Appellant, v. UNITED CALIFORNIA BANK, Appellee. No. 24064. United States Court of Appeals, Ninth Circuit. Feb. 11, 1972. Clayton Rost (argued), of Thoits, Lehman & Hanna, Palo Alto, Cal., Mathews, Traverse & McKittrick, Eureka, Cal., for appellant. William Holton (argued), John K. Derham, Joseph A. Kiernan, Rodney G. Commons, San Francisco, Cal., for appellee. Before ELY, WRIGHT and TRASK, Circuit Judges. TRASK, Circuit Judge: 1 This is an appeal by the trustee in bankruptcy from a denial, by both the referee and the district court, of a request for a turnover order with respect to $10,400 paid to Appellee, United California Bank, by an account debtor of the bankrupt within four months immediately prior to the filing of the petition in bankruptcy. This court's jurisdiction is conferred by 11 U.S.C. Sec. 47 . 2 Nunnemaker Transportation Company, Inc. (hereinafter, the bankrupt) had an account with Nilsen Feed Company (Nilsen) for whom it did hauling in the course of its trucking business. On or about February 23, 1967, United California Bank (the bank) made a…

I respectfully dissent. As I interpret the majority opinion, it is based primarily upon tacit acceptance of the appellant’s acquiescence in the District Court’s legal conclusion that the Bank’s security interest was in “general intangibles,” and thus could be perfected without filing a financing statement. Unlike my Brothers, I adhere to the established principle that “the court cannot be controlled by agreement of counsel on a subsidiary question of law.” Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 , 37 S.Ct. 287, 290 , 61 L.Ed. 722 (1917). See also, Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 51 , 60 S.Ct. 51 , 84 L.Ed. 20 (1939). In my view, therefore, the majority’s discussion amounts to nothing more than an advisory opinion.

As the majority recognizes, the payments due Nunnemaker from Nilsen were attributable to hauling services rendered by Nunnemaker. The Official Code Comment, quoted in footnote four of the majority opinion, leads me to believe that the district judge erred in categorizing the collateral as “general intangibles.” It is only “in some special cases” that “a contract right to receive money crystallizes not into an account…

This is an appeal by the trustee in bankruptcy from a denial, by both the referee and the district court, of a request for a turnover order with respect to $10,- 400 paid to Appellee, United California Bank, by an account debtor of the bankrupt within four months immediately prior to the filing of the petition in bankruptcy. This court’s jurisdiction is conferred by 11 U.S.C. § 47 .

Nunnemaker Transportation Company, Inc. (hereinafter, the bankrupt) had an account with Nilsen Feed Company (Nil-sen) for whom it did hauling in the course of its trucking business. On or about February 23, 1967, United California Bank (the bank) made a loan to the bankrupt in the principal sum of $15,000 evidenced by a promissory note executed by the bankrupt and guaranteed by Nilsen on said date. At the same time, to secure repayment of the loan, the bankrupt orally assigned to the bank a security interest in the future payments due on its account with Nilsen to *30 the extent of $2,600 per month. These arrangements were evidenced by a letter of the same date, executed by all the parties to the transaction, which reads as follows:

No financing statement with respect to this asserted security…