Rogers v. Fidelity Savings Bank & Loan Co. , 172 F. 735 ( 1909 )

ROGERS, District Judge

(after staling the facts as above). On this finding of facts the court declares tile law in favor of the plaintiff, as against the defendant bank; and that the cause of action is not barred by the statute of limitations. This court finds that Reifel was insolvent when lie sold to Jackson. In the light of the facts, no other conclusion could be reached than to hold that Reifel at the time of the sale knew that he was insolvent. If he knew it, providing, as he did, for the full payment of the defendant bank, he knew he could not provide for the full payment of his other creditors. Therefore, the payment of the defendant bank was intended by him as a preference. It was not necessary that the defendant bank or Burks should have known that the payment was intended by Reifel as a preference, or even should have believed it was so intended. It was sufficient if Burks acted for the bank in caring for its claim against Reifel, and came into possession of facts as to the condition of Reifel’s business sufficient to produce in the mind of an ordinarily prudent man reasonable cause to believe that Reifel was insolvent, and that the provision for the payment of his debt was intended as a preference. It would be profitless to discuss this evidence. I am unable, after the most careful consideration of all the evidence, to get the consent of my mind that the facts and the. transaction in the possession of the defendant Burks at the time the sale was made from Reifel to Jackson were not ample to put any ordinarily prudent man upon inquiry as to the solvency of Reifel and of his' intention in making the sale to Jackson; and the proper inquiry could not have failed to have resulted in the disclosure of Reifel’s condition and purpose. The transaction in this case must be determined by its effect, .and not by its form. The effect wás to prefer the bank. The following cases can be read with profit on these points: Roberts v. Johnson, 151 Fed. 567, 81 C. C. A. 47, 18 Am. Bankr. R. 132; In re Coffey, 19 Am. Bankr. R. 149; In re Hines (D. C.) 144 Fed. 543, 16 Am. Bankr. R. 495; Suffel v. McCartney Nat. Bank, 127 Wis. 208, 106 N. W. 837, 115 Am. St. Rep. 1004, 16 Am. Bankr. R. 259; In re Andrews, 144 Fed. 922, 75 C. C. A. 562, 16 Am. Bankr. R. 387; Parker v. Black (D. C.) 143 Fed. 560, 16 Am. Bankr. R. 202; In re Eggert, 102 Fed. 735, 43 C. C. A. 1, 4 Am. Bankr. R. 449; In re Virginia Hardwood Mfg. Co. (D. C.) 139 Fed. 209,15 Am. Bankr. R. 135 (decided by this court, and cases there cited); In re Pfaffinger (D. C.) 154 Fed. 523,18 Am. Bankr. R. 807, which case contains a very clear discussion, and cites many cases in point.

As to the statute of limitations, section 5083, Kirby’s Dig. Ark., was not intended and does not purport to shorten the general statute of limitations. It was intended as a saving clause to prevent a bar where it had already run when the nonsuit was suffered. Karnes v. American Fire Ins. Co., 144 Mo. 413, 46 S. W. 166; Long v. Long, 141 Mo. 352, 44 S. W. 341; Coffin v. Cottle, 16 Pick. (Mass.) 383. This suit is therefore not barred either under the bankrupt law or the statute of limitations of the state. It is not necessary to decide what statute applies to this character of case.

The finding of the court is that the plaintiff recover from the defendant bank $2,059 and 6 per cent, interest from the 9th of March, 1905, the date the original suit was brought, amounting in the aggregate to $2,619.39, with costs; and the court finds the issues in favor of the defendant Burks.