Lowenstein v. Silton ( 1925 )

Rugg, C.J.

This is an action of contract to recover for goods sold and delivered. The defendant filed a declaration in set-off. The defendant did not deny that at some time he owed the plaintiffs the amount of their claim. There "was evidence tending to show an accord and satisfaction between the parties. That was one reliance of the defendant. There was evidence tending to show that at some time thereafter the plaintiffs went into bankruptcy and a receiver was appointed and took charge of their property. One of the plaintiffs testified that "the bankruptcy case was settled with the creditors.” The defendant testified that one of the plaintiffs told him that some objection was being made to "our composition,” and later told him that "everything had come out all right.” The.plaintiffs’ requests for a directed verdict in their favor on their declaration was denied rightly. The jury may have believed the defendant to the effect that there was an accord and satisfaction and that the parties mutually agreed that their respective claims should balance each other.

The plaintiffs’ exception to the denial of their request that the defendant could not recover on certain counts in his declaration in set-off has become immaterial because the verdict of the jury was in the plaintiffs’ favor on the defendant’s declaration in set-off.

The plaintiffs excepted to the refusal to grant a request for a ruling that there was no question of fact with regard to title to the claim after bankruptcy proceedings. The charge in this particular was that, if a bankrupt owns claims against debtors, such claims would pass to the trustee in bankruptcy or to the receiver if there was a receiver, and that they would not come back to the bankrupt except through a conveyance from the trustee or receiver or a termination of the proceedings in such way, about which there was no evidence, that property revested in the original creditor. The question whether the plaintiffs were owners of the claims was left to the jury. There was no evidence as to the ending of the proceedings in bankruptcy by a composition under the law. No record was introduced. The testimony would hardly have supported a finding of a composition under the bankruptcy law. Certainly, no such finding was required. The evidence did not reach the degree of certainty necessary to warrant the inference of proof. Settlement with creditors and a statement that everything had come out all right are not the equivalent of composition under the bankruptcy law. The charge was sufficiently, favorable to the plaintiffs.

No question was raised at the trial that bankruptcy had not been pleaded as a defence. No ruling of that nature was requested and no exception saved to the charge on that ground. It is too late to raise it now. Moreover, it was pleaded in answer that the plaintiffs no longer owned the claim.

Exceptions overruled.