In re Tolman , 83 Me. 353 ( 1891 )

Peters, C. J.

The conclusion cannot be avoided, without disregarding previous decisions on virtually the same question, that the insolvent was a trader within the meaning which attaches to that term in our insolvent law. He styles himself a farmer, carrying on a milk farm in the vicinity of Rockland, and supplying milk to his customers in that city. He commenced the business in the spring of 1886, and went into voluntary insolvency in the spring of 1889. During the period between these dates he was the tenant of a divided half of his lather’s farm, selling farm products, occasionally buying and selling horses and cows, but making the delivery of milk a constant and his most important business. He kept a herd of cows, varying in number from eight to fourteen, having the latter number at the date of his petition in insolvency.

In May, 1888, the product from his own herd being insufficient for his business, he began to purchase milk from his neighbors to supply the deficiency. His business increased to such an extent that, between August, 1888, and April, 1889, he made regular outside purchases, the amount varying, according to the demand of the market, from four to twelve cans a day; each can containing eight quarts of milk. The purchases were a continuous though not strictly a daily business, because the twelve cans were sometimes a two-days’ supply. For several months, during the period above-named, he took all the milk which could be furnished him by his brother who carried on the other half of the same farm, a large amount comparatively considered, but he also continuously purchased during the same time of other persons.

Certainly, the insolvent’s occupation was more than that of farming. He was engaged in a regular, constant and extensive business of buying and selling milk. Although he produced from his own herd more than he bought of others, still the purchases contributed largely to the amount of his sales. The insolvent offers in explanation of such purchases, that they were of a temporary character; that he was all the while intending to add to his stock of cows, which had become reduced by disease and accident, but had been ¿delayed in so doing by financial embarrassment; and that he had been expecting that, at the approach of spring, natural causes would increase the product from the stock he had; thereby relieving him from the necessity of procuring milk outside of the production on his farm. This explanation would be good, no doubt, had the delay in procuring new stock existed for a few days merely, or, in some circumstances, for a considerably longer time; but when the same condition of things continues for an unbroken period of six months and more, it looks like a regular rather than a merely temporary or exceptional thing. Taking as favorable view of the facts as wo can, wo feel constrained to declare the insolvent to have been a trader in the article of milk. Sylvester v. Edgecomb, 76 Maine, 499; Merryfield's Appeal, 80 Maine, 233.

Did the insolvent keep proper books of account, as required by statute ? He kept no regular book account. He used a book in which was entered deliveries of milk, containing, under printed headings, names, dates and amounts. He also had a small hand-book, in which wore some informal accounts with ■different persons, rather in the nature of memoranda to supply personal memory than anything else. Some of these entries are in cipher, to prevent persons about him prying into his affairs. On his book are several inventories of his stock and property, and also some credits of money. But he nowhere enters in any book, in a single instance even, any purchases of milk or money paid or settlements made therefor. This important test of book-keeping fails. He has an account rendered by his brother for milk, but it is not carried upon any book. No one can ascertain from the insolvent’s books the condition of his affairs. The law does not heed excuses for not keeping-books, — it requires them to bo kept. Here there was a failure to comply with the law.

The counsel for the insolvent thinks it a hardship to require an honest debtor in such limited and humble business, without ■education in the matter of books and accounts, to keep books of account as a condition of a discharge from debt in case of his financial misfortune. There can be no remedy but by an appeal to the legislature.

The decree below refusing- a discharge must ,bo affirmed.

Decree affirmed.

Virgin, Libbiit, Emery, Haskell and Wiiiteiiouse, JJ., (concurred.