Before BIGGS, Chief Judge, and MCLAUGHLIN and KALODNER, Circuit Judges.
MCLAUGHLIN, Circuit Judge.
On April 1, 1958 the Internal Revenue Service made a levy and distraint upon personal property in the possession of Penn Garment Company, a New Jersey corporation, at its plants, Penns Grove, New Jersey. The action was taken under Section 6321 of the Internal Revenue Code of 1954, 26 U.S.C. 1958 ed. Sec. 6321, to satisfy a lien in favor of the United States and against Penn for unpaid taxes. Appellant, claiming to be owner of the property, petitioned the court to nullify the seizure and turn the property over to it. The court, holding that Penn was the owner of the property, found its seizure justified.
Penn is a closed corporation owned and controlled by Louis Wolfe and his family. It manufactures women's apparel.On April 12, 1957, it obtained a contract with the Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot, to supply 24,321 Air Force nurses' uniforms for a total price of $104,580.30. It sought to obtain the necessary cloth from Reeves Bros. Inc. textile manufacturers. Penn and Reeves agreed on quantity, quality and terms but Reeves would not deliver on Penn's credit alone.
Penn at the time was a contract manufacturer for Fine Fashions, Inc., a New York dress manufacturing corporation which had some garments made for it by independent contractors such as Penn. Fein, president of appellant, precisely gives the reason for helping Penn in his testimony as follows:
"The Court: So in order to keep in good with Wolfe, and his availability as an independent contractor, you went into this arrangement?
"The Witness: That is correct, sir.
"The Court: Is that the sum and substance of it?
The Stipulation of Facts states: "As an accommodation, Petitioner informed said Louis Wolfe of its willingness to purchase from Reeves the material, referred to herein as blue chambray cloth, required under the contract referred to in Paragraph 1 and to make the same available to Penn solely for the purpose of said contract." (Emphasis supplied). The trial court adopted that as its fifth Finding of Fact.
On July 1, 1957 Penn entered into a factoring agreement with Linde Factors Corp., 384 Fifth Avenue, New York 16, N. Y. whereby it assigned to the latter all moneys due or to become due it under the above Quartermaster contract. It covenanted to receive in trust any moneys advanced thereunder to be first applied to payments to claims of subcontractors, et als. arising out of the performance of the contract, etc.
On July 2, 1957 there was a conference at the office of Linde Factors. Mahler, treasurer of Linde was present. Stanley Wolfe was there for Penn and Henry Mayersohn, Esq., the attorney for Fine Fashions, was there for his client. During the conference a letter to Fine Fashions from Linde and approved by Penn was given Mayersohn. That reads:
"We have been directed by Penn Garment Company to retain all moneys received under contract #DA-36-243-QM-(CTM)-33 in the sum of $104,580.30, and which has been assigned to us. The purpose of the foregoing is to accumulate funds for the payment of piece goods purchased from Reeves Bros., and which purchase was guaranteed by you specifically for this contract.
"Funds are to be released only to Penn Garment Company, upon written authorization of your accountant Maurice Seifert, C.P.A. until all of said purchase invoices have been paid." (Emphasis supplied).
Mr. Mayersohn had that letter in his files until after the seizure of the cloth when he turned it over to Mr. Menschel then representing Fine Fashions. Mr. Menschel asked him as a witness at the hearing below:
"What purpose did you seek to accomplish by this letter or to have accomplished by it?" (Emphasis supplied).
The answer was "To have Linde Factors hold all of the funds received by it pursuant to the contract with the government to be paid, which money to be paid over to Fine Fashions." (Emphasis supplied).
Mayersohn said he was shown the assignment from Penn to Linde and that he knew about it "* * * before July 2nd and subsequent to July 2nd of 1957." Then came the following questions and answers:
"Q. And what did you do? A. I, in turn, relayed it to Fine Fashions, to Mr. Fein, and told him of the request made by Stanley Wolfe, and told him that he could place an order for the piece goods, that I had the paper from Linde Factors and it was alright for him to place the order for the piece goods at any time he saw fit, and to purchase it himself.
"Q. Was anything said as to the form in which this purchase was to be made? A. Yes, I told him to make the purchase himself.
"Q. By himself, you mean in his own company's name? A.In the name of Fine Fashions." (Emphasis supplied).
Fine Fashions bought the cloth from Reeves and had it sent to "Penn Garment Co., Penns Grove, N.J." There was no restriction of any kind in the contract between Reeves and Fine Fashions with respect to delivery by the former to Penn. The latter went to work on its uniforms project and started shipping them out when completed. The finished uniforms were paid for to Linde as delivered. Linde turned over $8,979.70 of the money received to Fine Fashions in accordance with its July 2, 1957 letter to that concern. The latter paid that sum over to Reeves on account of the price of the cloth. Linde also disbursed to Penn, $25,433.75 under the July 2nd letter. On May 7, 1958 and July 12, 1958 Fine Fashions completed its payments to Reeves representing the balance of the cost of the cloth. The levy and distraint by the Director of Internal Revenue upon Penn's personal property had taken place over a month before, on April 1, 1958. Included in the property seized was some cloth as delivered by Reeves, cut up cloth, completed and partially completed uniforms.
Appellant's contention is that it was the purchaser of the cloth from Reeves and occupied no other position regarding the cloth.In the course of this it attempts to completely repudiate the arrangement set out in the July 2, 1957 letter and all thought that it was acting as guarantor for the payment of Reeves' bill. The evidence, and practically all of it is from appellant, does not permit this. The above quoted testimony of appellant's attorney conclusively establishes that the letter satisfactorily detailed the terms under which appellant purchased the cloth for Penn. All moneys received by Penn under its Quartermaster contract were to be channeled into the factor and by it disbursed to (1) Fine Fashions to reimburse it for what it paid Reeves; (2) Penn for its operating expenses, etc.; finally that Fine Fashions guaranteed Reeves would be paid for its cloth. The testimony of Fein, president of Fine Fashions, supports that of his attorney as to this:
"Q. Now, what was your intention at the time you made these piece goods available to the Penn Garment Company? A. Those goods were to be made into uniforms.
"Q. And then, what was done with them? A.And then they were shipped to the Quartermaster, and the Quartermaster would issue a receipt to Linde from what I understand, and Linde ...