456 F.

2d 451
10 UCC Rep.Serv. 199

CONGRESS FINANCIAL CORPORATION

v.
STERLING-COIN OP MACHINERY CORPORATION et al.,
Appellant in
No. 19531.
Appeal of STERLING EQUIPMENT CORPORATION, No.
19532.
Appeal of STERLING SUPPLY CORPORATION, No. 19533.
Nos. 19531-19533.

United States Court of Appeals,

Third Circuit.
Argued Nov. 30, 1971.
Decided Feb. 2, 1972.

Lawrence Silver, Dilworth, Paxson, Kalish, Levy & Coleman,

Philadelphia, Pa., for defendants-appellants; (Leonard J. Cook, Richard J.
Gordon, on the brief.)
Edward Greer, Mesirov, Gelman, Jaffe & Levin, Philadelphia, Pa., for
plaintiff-appellee; (Edward L. Snitzer, on the brief).
Before SEITZ, Chief Judge, KALODNER and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.

The defendant-appellants, Sterling-Coin Op Machinery Corporation, Sterling

Equipment Corporation and Sterling Supply Corporation appeal from a
judgment in the sum of $16,273.031 entered in favor of plaintiff-appellee,
Congress Financial Corporation after a non-jury trial. Sterling-Coin Op
Machinery Corporation is in the business of selling coin-operated dry cleaning
equipment. Congress Financial Corporation (Congress), a finance company,

loans money on the security of installment paper. In 1962 Sterling-Coin Op

Machinery Corporation entered into a financing contract with Congress.
Sterling Equipment Corporation and Sterling Supply Corporation each
unconditionally guaranteed the obligations of Sterling-Coin Op Machinery
Corporation to Congress, and for purposes of this opinion the defendants will
be referred to collectively as Sterling.
2

In October 1962 Sterling sold certain dry cleaning equipment to Marguerite

Mueller and her husband Frederick Mueller for $28,051.33. Simultaneously
with their execution of the conditional sale contract the Muellers executed a
judgment note for $28,051.33 payable to Sterling's order. The note contained a
clause authorizing any attorney to confess judgment against them upon default
for any unpaid balance.

In the general financing agreement between Congress and Sterling, Sterling

undertook to repurchase on demand any installment paper sold to Congress
upon which a default should occur. The Mueller conditional sale contract and
judgment note were assigned to Congress by a separate written assignment,
which in relevant part said:

4 . . [Sterling] warrants the payment when due of each sum payable thereunder and
".
the payment on demand of the entire unpaid balance in the event of non-payment by
the buyer of any monthly sum at its due date, or of any other default by the buyer
without first requiring assignee to proceed against said buyer.
5******
6* * *
7
[Sterling]
warrants compliance with all filing and recording requirements, hereby
agreeing that any filing or recording or renewals thereof which [Congress] may
undertake at [Sterling's] request, or otherwise, shall be at [Sterling's] expense and
without responsibility whatsoever on [Congress'] part for any omission or invalid
accomplishment thereof, whether through [Congress'] failure, neglect, or for any
reason, and such omission or invalid accomplishment shall not relieve [Sterling] of
any responsibility to [Congress].
8******
9* * *
10 assignment shall be construed under the laws of the State of New York and none
The
of the terms shall be modified except by a writing signed by an officer of assignee

and notice of the acceptance thereof is hereby waived."

11

The district court found that the quoted language of the assignment was
intended by the parties to apply both to the conditional sale contract and to the
judgment note. In a transmittal letter accompanying the assignment, conditional
sale contract and judgment note, Sterling wrote:

12 are enclosing the Conditional Sale Contract on Bankers Commercial forms,

"We
covering a sale to Marguerite M. Mueller. Her husband has signed the guarantee on
the back of Page 1.
13 will also find enclosed a Judgment Note, endorsed to your order, with our
You
recourse, signed by both husband and wife, which we ask you to record in the proper
county, and send us the notice of recording."
14

At the time they executed the judgment note in October of 1962 the Muellers
owned certain real estate in Allegheny County, Pennsylvania. In March of 1963
they defaulted on the note. In December of 1963 they made a conveyance of
the Allegheny County real estate. Congress did not record the judgment note in
Allegheny County until September, 1964, when it entered judgment against the
Muellers in that county for $21,870.39.

15

Congress and Sterling pursued the Muellers and the transferee of the real
estate. Eventually they agreed to a settlement with the Muellers whereby the
latter paid $6,500 in cash and returned the equipment to Congress in exchange
for a satisfaction of judgment and a release. Congress and Sterling agreed that
the settlement was without prejudice to the rights and liabilities of either against
the other. The $6,500 payment together with other payments which had been
made by the Muellers left the outstanding balance on the original transaction at
$12,517.73.

16

Congress sued Sterling for this amount. Sterling in its answer asserted the
defense that Congress, as pledgee, had caused damage to the security and was
thereby barred from recovery. Such damage, Sterling asserted, occurred
because Congress failed to record the judgment note, and thereby failed to
perfect a lien on the Muellers' real estate,2 prior to the Muellers' alienation of
that property in December of 1963. An appraisal in evidence suggests that in
December of 1963, just prior to transfer, the Muellers had an equity in the
transferred real estate of about $25,000. Sterling filed a counterclaim for
$1,900.50, the legal fees which it had expended in pursuing the Muellers for
the $6,500 settlement. The district court entered judgment for Congress in the
amount of $12,517.73 plus interest, and against Sterling on its counterclaim.

17

Sterling relies upon Sec. 9-207(1) of the Uniform Commercial Code which
provides:

18 secured party must use reasonable care in the custody and preservation of
"A
collateral in his possession. In the case of an instrument or chattel paper reasonable
care includes taking necessary steps to preserve rights against prior parties unless
otherwise agreed." N.Y.U.C.C. Sec. 9-207(1) (McKinney 1964); Pa.Stat.Ann. Tit.
12A Sec. 9-207(1) (1970).3
19

It is common ground between Sterling and Congress that the duty to "[take]
necessary steps to preserve rights against prior parties" ordinarily would include
the duty to record an instrument at an appropriate time. Cf. Siedman v.
Merchants Bank of New York, 7 U.C.C.R.S. 881 (1970). Under Sec. 9-207(3) a
secured party must bear any loss caused by its failure to meet any obligation
imposed by Sec. 9-207(1). Thus, says Sterling, Congress must shoulder the
total loss caused by its failure to record the judgment note including the cost of
collecting the $6,500 settlement.

20

Congress, relying on the language of the assignment quoted above and on the
last three words in Sec. 9-207(1) "unless otherwise agreed," says that it had no
duty in this case to take any steps to record. Certainly the language quoted from
the assignment specifically purports to relieve the assignee of any liability for
failing to record.

21

Sterling, however, argues that the quoted language is void under another
section of the code, Sec. 1-102(3):

22 effect of provisions of this Act may be varied by agreement, except as

"The
otherwise provided in this Act and except that the obligations of good faith,
diligence, reasonableness and care prescribed by this Act may not be disclaimed by
agreement but the parties may by agreement determine the standards by which the
performance of such obligations is to be measured if such standards are not
manifestly unreasonable."
23
N.Y.U.C.C.
Sec. 9-102(3) (McKinney 1964); Pa.Stat.Ann. Tit. 12A Sec. 9-102(3)
(1970).
24

Both parties take comfort from this provision. Sterling claims that the
exculpatory clause in the assignment amounts to a disclaimer of the duty of
reasonableness and care expressly prohibited by Sec. 1-102(3). Congress says
that the clause is merely a determination by agreement of the standard of
reasonable care imposed by Sec. 9-207(1).

25

If the assignment contained the language "the assignee shall have no duty to
record the judgment note" we would have no difficulty in holding that loss here
must fall on Sterling. Siedman v. Merchants Bank of New York, supra. But an
agreement to that express effect cannot be found in the instrument. If there is
such an agreement it arises by implication from the warranty by Sterling of
compliance with all filing and recording requirements. Yet the exculpatory
clause itself obviously implies that in some circumstances Congress may
undertake to record. Accepting arguendo that the warranty language is by
necessary implication an agreement, within the meaning of the second sentence
of Sec. 9-207(1), that reasonable care does not require that the assignee record
the judgment note, then the balance of the clause must disclaim a duty other
than the simple obligation of a secured party to preserve collateral through
recordation. It would then operate in situations where a secured party, despite
having contracted out of his ordinary duty to record, nevertheless undertook to
record and did so without exercising care, thereby reducing the value of the
collateral. So construed the exculpation from liability seeks to deprive the
assignor in an action brought by the assignee of any defense predicated upon
the assignee's careless impairment of the security.

26

It is not, however, in the light of all the papers, a necessary implication of the
language of the recording clause in the assignment that Congress defined
recording out of its Sec. 9-207(1) duty of reasonable care. The assignment is on
a printed form prepared by Congress and evidently intended to cover various
kinds of commercial paper. Most such paper could and should be recorded at
the outset.4 Other such paper, the judgment note here involved, for example,
might not be recorded until after a default. The district court assumed that the
judgment note could be recorded before a default, but that there might be sound
reasons for waiting until after such had occurred. 5 As we read the Pennsylvania
cases, the note could be properly recorded only after a default,6 but, in any
event, recordation after default was a reasonable alternative. This alternative
puts in context the request by Sterling in the October 22, 1962 transmittal letter
that Congress record the note in the proper county and send it notice of the
recording. Under the circumstances it is certainly arguable that Sterling's
warranty of compliance with all filing and recording requirements is simply
inapplicable to the judgment note, and that there is no agreement addressed
specifically to Sec. 9-207(1). If the assignment is read thus, the balance of the
clause is not a definition of a standard of reasonable care, but an exculpation
from liability for lack of reasonable care in performing a duty which may in
fact have been undertaken. Such an exculpation is prohibited by Sec. 1-102(3).

27

Even if we assume the first hypothesis-that the language of warranty by

Sterling of compliance with all filing and recording requirements by itself

would imply an agreement that the assignee had no duty to record the judgment
note-a question of contract interpretation remains.
28

Here Congress received an unrecorded judgment note together with a letter

from Sterling indicating that the latter was looking to Congress for recordation.
Congress contends that the letter of transmittal must be divorced from the note
and assignment when determining its undertaking, but that the exculpation
clause in the assignment must be construed as applicable to the judgment note.
A more reasonable interpretation of the agreement, we think, would involve
looking to all three documents for the intention of the parties. Taking this
approach one is compelled to the conclusion that there was no agreement
negating Congress' duty under Sec. 9-207(1), and perhaps even an undertaking,
implied from the receipt and retention of the transmittal letter and the note, that
Congress would record. Assuming this interpretation of the agreement, the
attempted exculpation from liability for failing to perform the undertaking is
void under Sec. 1-102(3).

29

But even if we resolve all questions of contract interpretation in favor of

Congress, holding that the assignment negates its pledgee's Sec. 9-201(1) duty
to record, it fares no better. It is one thing to say that a pledgee who has
contracted out of a duty with respect to collateral is not liable for losses caused
by failure to record. It is quite another to say that a pledgee who having so
contracted, undertakes nevertheless to act may by contract exculpate himself
from his own lack of reasonable care and thus avoid application of the
impairment defense.

30

Sterling's letter clearly indicated that it was relying on Congress to record the
judgment note. The uncontradicted testimony of Mr. Podgur, Sterling's
Treasurer, was that he first learned that the note had not been recorded when
Muellers' attorney in July of 1964 informed him the Muellers had sold their
home and were insolvent. He investigated, and protested to Congress. By then
the res had fled and both parties began the pursuit which produced only $6,500.

31

Congress took possession of the note, which by its nature was both the
evidence of indebtedness and a form of collateral security, with full knowledge
that additional steps were required in order to perfect the security against the
Muellers, and with full knowledge that the pledgor, Sterling, was relying on it
to take those steps.

32

Assuming that Sterling's warranty of recordation shall be construed as an

agreement that Congress had no Sec. 9-207(1) duty, that agreement was one

which it could properly waive. By its silence in the face of Sterling's reliance as
evidenced by the text of the transmittal letter it must be deemed to be estopped
from disavowing such a waiver.7 The question then is the effectiveness of the
exculpation clause to protect Congress against a defense based upon a Sec. 9207(1) duty gratuitously undertaken, despite a contrary agreement, and relied
upon by Sterling. Nothing in Sec. 1-102(3) or in any other provision of the
U.C.C. suggests that such a clause may be validated. If Congress waived the
agreement limiting its Sec. 2-907(1) duty then the duty to use reasonable care in
preserving rights against third parties was operable, and the attempted
exculpation was void.
33

Thus on any construction of the papers which was open to the district court the
loss resulting from the loss of value of the collateral must fall on Congress. Sec.
9-207(3).

34

There remains the question on liability to Sterling for the attorneys fees
incurred in collecting from Muellers the $6,500 which after default was
collected. Here, we think, Congress does fare better. The district court found
that once the default occurred both parties were attempting to collect from the
Muellers for their mutual benefit and that "[u]nder the circumstances the
defendants were at least as negligent as the plaintiff in failing to take steps to
verify the existence of the judgment lien." That finding is not clearly erroneous
(Fed.R.Civ.P. 52(a)) and Sterling's contributory negligence bars its recovery
from the negligent pledgee. Siedman v. Merchants Bank of New York, supra at
885. The district court should properly have left the parties where it found
them.

35

A brief comment on the governing law is appropriate. In this diversity case we

must look to Pennsylvania law as the source of our choice of law rule. Klaxon
Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85
L.Ed. 1477 (1941). The assignment contained a choice of law clause
designating New York law as controlling. Pennsylvania courts would give
effect to such a clause (Pa.Stat.Ann. Tit. 12A Sec. 1-105 (1970)) and under
Klaxon we must do the same.

36

New York and Pennsylvania have enacted identical versions of Secs. 1-102(3)
and 9-207(1).8 We have been referred to no case directly in point decided by
the courts of either of these states and, in fact, to no such case decided in any
state. Our examination of the few New York authorities bearing on the
pledgee's duty of reasonable care for the collateral convinces us that a New
York court would decide the case as we have. See Siedman v. Merchants Bank
of New York, supra, Grace v. Sterling, Grace & Co., 30 A.D.2d 61, 289

N.Y.S.2d 632 (1968). Cf. Reed v. Central National Bank, 421 F.2d 113 (10 Cir.
1970). And see Willets v. Hatch, 132 N.Y. 41, 30 N.E. 251 (1892).
37

The judgment of the district court will be reversed. The judgment in favor of
Congress on Sterling's counterclaim will be affirmed.

38

SEITZ, Chief Judge (concurring).

39

In my opinion Congress retained the responsibility of recording the judgment

note upon default regardless of whether the assignment agreement purported to
cover both the sales contract and the judgment note or, alternatively, the sales
contract only. The assignment transaction between Sterling and Congress was
governed by the Uniform Commercial Code. Section 9-207(1) thereof
provides:

40 secured party must use reasonable care in the custody and preservation of
"A
collateral in his possession. In the case of an instrument or chattel paper reasonable
care includes taking necessary steps to preserve rights against prior parties unless
otherwise agreed." N.Y.U.C.C. Sec. 9-207(1) (McKinney 1964); Pa.Stat.Ann. Tit.
12A Sec. 9-207(1) (1970).
41

Here Congress was in possession of the note at all times after the initial
transfer. Accordingly, upon default it clearly had the duty to record the
instrument unless "otherwise agreed" between itself and Sterling. Congress
contends that it otherwise agreed by pointing to the language in the assignment
whereby Sterling acknowledged "that any filing or recording or renewals . . .
which [Congress] may undertake at [Sterling's] request, or otherwise, shall be at
[Sterling's] expense and without responsibility whatsoever on [Congress'] part
for any omission or invalid accomplishment thereof, whether through
[Congress'] failure, neglect or for any reason, and such omission or invalid
accomplishment shall not relieve [Sterling] of any responsibility to [Congress]."
As I read this provision, however, it does not speak to the responsibility of the
parties for recording the judgment note in the event of a default.

42

The assignment agreement does contain a warranty by Sterling regarding

compliance with all filing requirements. However, such language obviously
could not apply to the judgment note as of the date of the initial assignment
because the note was not then in default and, therefore, could not have been
recorded in Pennsylvania. As to future filings the assignment provision merely
places the expense thereof on Sterling. It does not speak explicitly to the duty to
record. It would seem reasonable that if the assignment provision emphasized

by Congress were intended to obligate Sterling with regard to all necessary

future filings, some provision would have been inserted in the agreement
providing for notice to Sterling from Congress as of the time recording became
timely, e. g., upon a default. No such provision appears. Coupling this
observation with the unclear wording of the agreement, which was prepared by
Congress, I conclude that the agreement did not cover the responsibility of
recording the judgment note upon default.
43

Of course, the quoted provision from the agreement could be read as an

exculpatory clause relieving Congress from any liability to Sterling regardless
of which party had the responsibility to file the note upon default. To so
construe the provision, however, would be to contravene Sec. 1-102(3) of the
Code which provides:

44 effect of provisions of this Act may be varied by agreement, except as

"The
otherwise provided in this Act and except that the obligations of good faith,
diligence, reasonableness and care prescribed by this Act may not be disclaimed by
agreement but the parties may by agreement determine the standards by which the
performance of such obligations is to be measured if such standards are not
manifestly unreasonable." N.Y.U.C.C. Sec. 1-102(3) (McKinney 1964); Pa.
Stat.Ann. Tit. 12A Sec. 1-102(3) (1970).
45

As I construe the assignment, Congress retained the duty to record the

judgment note upon default according to the standard of reasonable care
prescribed by the Code. The parties could agree to determine performance by
some other standard "not manifestly unreasonable." However, the exculpatory
clause here was not such an agreement. Rather, it was an attempt by Congress
to insulate itself from the consequences of noncompliance with what I find to
be the statutory provision controlling the circumstances of this case.

46

It is possible, of course, that despite Congress' failure to make a timely filing of

the judgment note, Sterling would still remain liable as an indemnitor.
However, neither party suggests that the debtors' equity in the collateral realty
at the time of the default was insufficient to cover the balance of the judgment
note. Indeed, the record compels a contrary conclusion. Therefore, I concur in
the conclusions reached by Judge Gibbons both as to the complaint and the
counterclaim.

47

KALODNER, Circuit Judge (concurring).

48

I concur in the result for the reasons stated in the concurring opinion of Chief

Judge SEITZ.

This sum includes interest

Under Pennsylvania law recordation of the judgment in Allegheny County

would have perfected a lien upon all of the Muellers' real property located
within that country. Pa.Stat.Ann. Tit. 12 Sec. 861 (1953)

For a discussion of the choice of law considerations involved in this case see
pp. 456-457 infra of this opinion

N.Y.U.C.C. Secs. 9-302, 9-304(1) (McKinney 1964); Pa.Stat.Ann. Tit. 12A

Secs. 9-302, 9-304(1)

The court below expressed the opinion that immediate recordation of the
judgment note might exhaust the underlying warrant of attorney thereby
necessitating that the Muellers be personally served in order to perfect the lien
resulting from judgment

Rose v. Cohen, 193 Pa.Super. 454, 165 A.2d 264 (1960) strongly suggests that
the judgment note in this case could not be recorded until after default since it
authorized confession of judgment only after such had occurred. In the absence
of limitations as to the time of confession, Pennsylvania judgment notes have
been immediately recordable. O'Maley v. Pugliese, 272 Pa. 356, 116 A. 308
(1922). The continuing validity of such practice in light of Swarb v. Lennox,
314 F.Supp. 1091 (D.C.1970) is of no relevance here, for Swarb limited its own
force to prospective application

Cf. 1 S. Williston, A Treatise on the Law of Contracts Sec. 140 at 614 (1958);
5A A. Corbin, Contracts Sec. 1240 at 565-66 (1964). See N.Y.U.C.C. Sec. 1103 (McKinney 1964); Pa.Stat.Ann. Tit. 12A Sec. 1-103 (1970). Neither party
attempts to argue that any usage of trade should affect the outcome of this case.
See N.Y.U.C.C. Sec. 1-205 (McKinney 1964); Pa.Stat.Ann. Tit. 12A Sec. 1103 (1970)

N.Y.U.C.C. Secs. 1-102(3), 9-207(1) (McKinney 1964); Pa.Stat.Ann. Tit. 12A

Secs. 1-102(3), 9-207(1) (1970)