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as might happen to be the case with any business man. And it is quite important also to remember that, under the present bankruptcy act, temporary inability to meet payments does not constitute insolvency, and consequently notice of that state of a debtor's affairs does not, per se, give information as to his property, nor whether at a fair valuation it is sufficient to pay his debts. Hussey v. Richardson, etc., 148 Fed. 600, 78 C. C. A. 370.
We have now reached a point where we are to inquire whether the testimony in the case fairly shows that at the time of the payments or any of them the creditor or any agent acting for it had the quantum of information respecting its debtor's affairs which was necessary under the law to make the preference voidable. The question is one of fact, and the onus is on the trustee who affirmatively alleges that a preference was given. Butler Paper Co. v. Goembel, 143 Fed. 296, 74 C. C. A. 433. The evidence shows that the debtor was certainly insolvent in the latter part of 1906, and also that the several payments referred to were made within the four months next preceding the filing of the petition. We may always conclude without further testimony that payment to a creditor will necessarily increase his dividends in a case where his debtor is at the time insolvent. Three of the four necessary elements in this case may therefore be regarded as established. Upon the fourth (to wit, whether the creditor had reasonable cause to believe that a preference was intended), only two witnesses were examined, namely, the bankrupt and the president of the banking company. The testimony shows without contradiction that in March, 1903, the bankrupt changed his account from the German Insurance Bank to the Louisville Banking Company, because, at the latter, he could get a lower rate of interest upon money he might have to borrow than he could at the former, namely, a 6 per cent. rate as against a 9 per cent. rate; that when he applied to the latter bank to make the arrangement the bankrupt was required to give a statement in writing purporting to show his financial condition at that time; that he handed the statement to the president of the banking company, Theodore Harris; that it showed the bankrupt's assets then to be $19,674, and his liabilities to be $10,200; that thereafter and until December 21, 1906, he kept his account with the banking company, making his deposits and discounting his notes and bills, and obtaining his loans there, all in the regular course of business, the details of the account during the entire period being shown in a copy thereof filed with the testimony; that the payments made to the banking company between September 15 and December 21, 1906, as shown in the list of payments hereinbefore copied, with the exception of that of $1,000 made November 15th, were made in this way, namely, the bankrupt had discounted with the banking company many notes of his customers, which notes he had indorsed, and when the makers failed to pay any of them he took them up either with checks for the amounts made on his deposits with the banking company, or else the amount of each note was charged up to him in his account; that the bankrupt first realized early in November, 1906, that he was insolvent, but that on November 15, 1906, he paid a five-day note to the banking company for $1,000. The bankrupt testified at some length respecting this transaction. Giving this testimony its full effect, it amounts shortly to this: That the bankrupt owed to the banking company a note for $1,000 which matured early in November, 1906; that the banking company insisted upon its being paid upon the ground that the bankrupt then owed it more money than it wanted to lend him upon a deposit account no larger than his; that further time upon the note was then requested by the bankrupt upon the only ground stated, that he could not get in collections at that time; that five days' time was thereupon given, and the note renewed; that at its maturity it was paid; that when asked by the banking company from time to time (obviously referring to a period in the latter part of 1906) as to his financial condition, the bankrupt's answer had been that he could not always take up his notes promptly because money matters were hard in the way of collections ; that the bankrupt did not himself know of his insolvent condition until after he had had an inventory taken early in November, 1906; that even then he did not tell the banking company of his condition; that he was forced by the banking company to take up the $1,000 note; and that the banking company made him pay in order to reduce his borrowing account. There was no evidence except what related directly to the $1,000 payment. This, however, has been considered as far as it might legitimately bear upon the other payments in question, though, of course, its weight must be regarded as very inconsiderable as to all of them which were made previously to November 1, 1906. Indeed, as to such payments we may say that there was practically no evidence at all in support of the charge of preference.
Waiving the very serious question whether, even if uncontradicted, the testimony offered by the trustee could be regarded as sufficient to support his contention as to any of the payments, we find that Theodore Harris, the president of the banking company, and with whom the business was transacted, after stating that he had never known the bankrupt previous to his application to open an account with the banking company in March, 1903, testified that the bankrupt in March, 1903, had asked to become a customer of the banking company because he said he was paying a higher rate of interest than was desirable where he had been doing his banking; that he was requested and did make a written statement showing his assets and liabilities at the time; that the statement furnished showed the former to be $49,674, and the latter to be only $10,200; that witness thus understood the bankrupt to be perfectly solvent; that for the succeeding years the banking company loaned him money as he needed it, and discounted his business paper in the regular way, and also kept his deposit account; that as the bankrupt was a hard-working, economical man the witness never doubted that he was making money and doing fairly well in his business, but as his borrowing account was too large in proportion to his deposit account to meet the banking company's views, witness told the bankrupt that that account must be reduced ; that this was done when a certain $1,000 note matured early in November, 1906, and payment in cash was demanded; that the bankrupt stated that his collections of money were a little hard at the time and asked for some indulgence; that five days were mentioned and readily given, and the note renewed for that period; that 30 days' time would have been given if that much had been requested; that the $1,000 note was promptly paid at maturity; and that the witness not only thought the bankrupt was solvent during all this time, but had no suspicion to the contrary until informed thereof by the bankrupt's attorney in January, 1907.
Without determining whether the testimony offered by the trustee, if taken alone, would support the charge of preference, we are content to say that a very careful consideration of all the evidence has led us to the clear conviction that it by no means supports the emphasized conclusion of the learned referee that the bankrupt "informed the banking company or its president that he (the bankrupt) had not the means and could not pay the $1,000.” On the contrary, the bankrupt could, and in fact did, pay that note at maturity with means at his command, and what he had told the banking company was that he was hard up for collections, and he had told this not at the time of the payment of the $1,000, but as a reason why he asked for the extension of time when the note therefor was last renewed. In speaking of the deposition of Mr. Krieger in the case of Stucky, Assignee, v. Masonic Savings Bank, 108 U. S. 75, 2 Sup. Ct. 220, 27 L. Ed. 640, the Supreme Court said:
“We have examined his deposition very carefully. We think it bears the impress of candor, and negatives the idea that he had reasonable ground to believe Melter insolvent, or that he actually did believe it."
We are tempted to make the same remark about the deposition of Mr. Harris, inasmuch as we entertain a similar opinion respecting it. Besides, our own personal experience lias taught us that banks usually dislike a mere borrowing account, and their desire is to keep in close limits, unless the deposit account is liberally kept up in proportion, in which event a bank practically loans a man his own money and gets interest upon it. At all events, after a very careful consideration of the testimony in all its phases, we have reached the conclusion that it does not show that any preference, within the sense of the bankruptcy act, was given to the Louisville Banking Company, and consequently that its claims should have been allowed in full without requiring it to surrender any part of the payments amounting to $1,865 and described in the referee's order herein.
The order of the referee to the contrary must, therefore, be reversed, with directions to allow the claims of the Louisville Banking Company, amounting in the aggregate to $15,792.62.
In re PFAFFINGER.
(District Court, W. D. Kentucky. June 6, 1907.) BANKRUPTCY-DISCHARGE-FALSE STATEMENT MADE TO OBTAIN PROPERTY ON
A borrowing of money does not constitute the “obtaining of property on credit" within the meaning of Baukr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended February 5, 1903 (32 Stat. 797, c. 487 (U. S. Comp. St. Supp. 1905, p. 681]), and the obtaining by a bankrupt of a loan from a bank by means of a materially false statement in writing made for the purpose is not ground for denying him a discharge.
of "Tohin suppothe hearing by inevitable acto the bankirdet
EVANS, District Judge. The Louisville National Banking Company, a creditor, has moved the court to annul and set aside the order entered herein on May 4, 1907, granting a discharge to the bankrupt upon the ground that it was prevented by inevitable accident from opposing the discharge when the hearing was had upon the bankrupt's petition therefor. In support of this motion the creditor has filed the affidavits of John R. Duffin and Wm. M. Smith, the latter affiant being the creditor's attorney. In further support of the motion the creditor has tendered a specification of its ground of opposition to the discharge. We may assume that the affidavits sufficiently establishi a state of fact which might warrant the court in setting aside the order if the objection to the discharge alleged by the creditor be sufficient, under the statute, to defeat it. If the ground stated, assuming it to be true, is not in law sufficient, the discharge, which was granted in due and regular time and order, should not be disturbed.
The creditor filed sundry proofs of debt against the bankrupt's estate, each of which proofs was based upon a promissory note of recent date. The ground upon which the discharge is opposed is alleged to be that:
"The said Pfaffinger obtained money from this creditor upon a materially false statement in writing made to it for the purpose of obtaining such money. It says that on or about March 24, 1903, said Pfaffinger came to this creditor, the Louisville Banking Company, in Louisville, Ky., and made a request to open an account with it and to borrow money from time to time therefrom; that its said bank, through its president, told said Pfaffinger that he would have to first furnish a written statement of his assets and liabilities, showing fully his financial condition, before said bank could pass upon the question of loans, and it gave said Pfaflinger a blank statement, fully explaining same to him at the time; that he took it away with him and afterwards returned with it filled and signed by him, dated March 24, 1903."
The statement in writing referred to was addressed to the Louisville National Banking Company, and on its face says that it “is made for the purpose of borrowing money from” the bank. It shows the writer's indebtedness to be $10,200, and his assets to be at least $49,674.
Section 14 of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427], as amended on February 5, 1903, 32 Stat. 797, c. 487 [U. S. Comp. St. Supp. 1905, p. 684), provides, among other things, that the court shall grant the discharge unless the applicant had “(3) obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit," and the question to be determined is whether borrowing “money” is "obtaining property on credit” within the meaning of that phrase in the statute. The question is not altogether free from doubt, because the word "property” is nomen generalissimum and of wide signification. In its broadest sense, of course, it would include money as well as everything else which can be the subject of ownership. What we are concerned to ascertain is precisely what Congress intended by the phrase "obtain
ing property on credit” as used in the act. The ground of opposition to a bankrupt's discharge which we are now considering was never introduced into our statute until February 5, 1903, and we have not found that the question now in contention has ever been satisfactorily adjudicated. The words under consideration are not technical, and should, we think, be given their easily understood meaning as commonly used in business circles and by the people generally. We should hardly expect one to use the words “obtaining property on credit” in speaking of an ordinary borrowing of money. One would rarely, if ever, be misunderstood if he spoke of obtaining property on credit. He would be regarded as referring not to obtaining a loan of money, but to getting possession of and the title to real estate or goods or chattels purchased by him without paying the price in cash.
A careful examination of the clause of the act and of each word in it will, we think, show that the real intention of Congress clearly was to deny discharges to bankrupts who had purchased specific property, and who, instead of paying cash therefor, had induced the seller to deliver it and to give credit for the price and defer the payment thereof by means of a materially false statement in writing made to secure those results. This seems to be the full extent of what was intended, as well as the meaning of the language used by Congress. We think the statute refers to purchases and sales of property on “credit," and not to loans of money. This seems to be the view also of Mr. Collier in his work on Bankruptcy (6th Ed.) pp. 196–199. Congress might, of course, and probably upon equally good reasons, have included the borrowing of money or other transactions in the legislation; but the question is what Congress did, and not what it might have done, and in endeavoring to ascertain the intention of Congress in what was actually enacted we must assume that it employed the language for the purpose of expressing what everybody would ordinarily understand it to mean according to popular usage.
The interpretation we give the statute appears to be abundantly supported by the second of the rules laid down by the Supreme Court in its opinon in United States v. Isham, 17 Wall., at page 504 (21 L. Ed. 728), where it was said:
"The words of a statute are to be taken in the sense in which they will be understood by that public in which they are to take effect. Science and skill are not required in their interpretation, except where scientific or technical
terms are used.'
And Mr. Endlich in his work on the Interpretation of Statutes says that:
"In general, statutes are presumed to use words in their popular sense; uti loquitur vulgus.”
We therefore conclude that the phrase "obtaining property on credit" was not intended to include a borrowing of money on time. That is not the meaning the public would naturally attach to the phrase.
If this view be correct, the ground of objection stated by the creditor, even if true, would have been immaterial and wholly unavailable to prevent the discharge of the bankrupt, if it had been presented in due season. But lest our interpretation should not be the correct