Rogers v. American Halibut Co. , 216 Mass. 227 ( 1913 )

Braley, J.

The intention of a bankrupt to confer a preference no longer need be shown, but the plaintiff under the statute as amended still had the burden of proving, that the defendant when the payment was received had reasonable cause to believe that its debtor was insolvent and that enforcement of the transfer would result in diminishing the bankrupt’s assets applicable to the payment of creditors of the same class. U. S. St. 1898, c. 541, § 60 b, as amended by U. S. St. 1910, c. 412, § 11. Hewitt v. Boston Straw Board Co. 214 Mass. 260. Wilson v. Mitchell-Woodbury Co. 214 Mass. 514. National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178. It is unnecessary to show actual knowledge or belief by the creditor. If the circumstances are such as would lead the ordinarily prudent man of affairs to the conclusion that his debtor is insolvent, he obtains a preferential payment within the meaning of the statute, by accepting payment in whole or in part of the debt, where the transaction takes place within four months previous to adjudication; and other creditors of the same class, because of the greater percentage received, must accept decreased dividends. Hewitt v. Boston Straw Board Co. 214 Mass. 260, and eases cited. Wilson v. Mitchell-Woodbury Co. 214 Mass. 514.

By § 60 b, knowledge possessed by his agent binds the creditor, but this provision is to be taken with the qualification, that where the agent is acting in furtherance of his own adverse interest or fraudulently, his principal is not bound. Hewitt v. Boston Straw Board Co. 214 Mass. 260. Quinn v. Burton, 195 Mass. 277. The bankrupt was the general business manager of the defendant corporation, and within the prescribed period he paid to the bookkeeper in partial settlement of overdrafts of his account with the company the amount in controversy. His insolvency when he made the payment is conclusively shown by his own evidence. U. S.'St. 1898, c. 541, § 1 (15). The jury could infer that the money went into the company’s treasury, and in the ordinary course of bookkeeping the transaction finally appeared in some form upon its books. It is also of significance that the defendant has retained the money, and from all these circumstances there was evidence of ratification. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 418. A further finding that the bankrupt intended the payment should' enure to the defendant’s benefit would have been warranted, and, not having acted for his own individual interest at the expense of his principal, he did not exceed the scope of his employment. Besides, his knowledge, that he was insolvent, is to be imputed to the defendant, and, if believed, the evidence would have justified the jury in finding, that as manager charged with the supervision of its business he had reasonable cause to believe the company’s debt would be largely satisfied to the detriment of his other creditors. Jaquith v. Davenport, 191 Mass. 415, 417, 418.

It would follow under the declaration, which is sufficient in form, that upon these findings the payment was a voidable preference at the election of the plaintiff, and can be recovered back, subject, however, to the right of the defendant under its declaratian in set-off to have subsequent credits which have become part of the debtor’s estate deducted, if made in good faith and without security. U. S. St. 1898, c. 541, § 60 c. Peterson v. North Bros. 112 Fed. Rep. 311. Kaufman v. Tredway, 195 U. S. 271.

The verdict for the defendant was ordered erroneously. But, as the question argued by counsel, whether the defendant can retain the money under the assignment offered by it in evidence and excluded, may arise at the new trial, it should be considered and decided. The payment consisted of part of the proceeds of a judgment recovered by the bankrupt in an action of tort for personal injuries, which before verdict he had assigned to the defendant. The assignment, although antedating the adjudication nearly nine months, did not transfer the cause of action, which was unassignable, or vest in the defendant, before it had been entered, any legal right to a judgment based on a cause of action sounding in tort. Flynn v. Butler, 189 Mass. 377, 389, and cases cited. Sibley v. Nason, 196 Mass. 125,130. The assignment and accompanying offer of proof were inadmissible.

Exceptions sustained.