Cunningham v. Elco Distributors, Inc. , 189 F.2d 87 ( 1951 )

MARTIN, Circuit Judge.

Our concern for the administration of substantial justice has accorded unusual indulgence to the appellant in this case. The appeal is from an order of the district court sustaining denial of the discharge of the bankrupt by the referee in bankruptcy. The record filed here contained no transcript of the evidence before the referee, and no additional evidence was introduced before the judge at the hearing on petition for review. The attorney for appellant had neglected to designate in his praecipe an essential element to consideration of his points on appeal. In oral arguments and briefs, the attorneys discussed facts of which the record was bare. Leave was granted appellant to file in typewritten form the needed transcript, which consisted of fifty-five typewritten pages and was not filed until two months after the hearing. This has occasioned the delay in disposition of the case.

From the findings of fact of the referee, all substantially supported by the evidence, it appears that the bankrupt, Cunningham, conducted in Zanesville, Ohio, a wholesale business under the name and style of Acme Candy and Notion Company. Much of his merchandise was purchased from appellee, Elco Distributors, Inc., a corporation of which Levin and wife were the principa) stockholders. Eventually, Cunningham wan pressed by Levin, the corporation’s executive, for payment of an open account indebtedness of some $6,000 to Elco and made repeated promises to pay, which were not fulfilled, with the result that Levin threatened suit. Being unable to secure from a bank in his home city money with which to pay his indebtedness to Elco, Cunningham discussed with Levin the possibility of securing a loan from a bank in Steubenville, Ohio, where the Elco company conducted its business. The loan, if obtained, would enable Cunningham to pay his indebtedness to Elco.

The two men went to the National Exchange Bank and Trust Company in Steu-benville, discussed the matter of a loan, and secured a blank note and a form for the financial statement required by the bank. Cunningham took this statement back to Zanesville and had his bookkeeper fill in the financial statement with figures taken from his books, which listed no real property. Cunningham, however, caused to be listed in the financial statement an item of real estate in which his wife owned an equity. He knew that he did not own the real estate but that, subject to a mortgage, it belonged to his wife. He stated that he hoped that she would join him in signing both the financial statement and the promissory note to the bank. This she declined to do.

The financial statement signed by Cunningham showed on the balance sheet the value of the real estate to be $9,200, subject to a mortgage of $5,000. In the schedule of real estate owned, appearing in the financial statement below the balance sheet, title to the property was shown to be in Cunningham and his wife. Cunningham left the financial statement and promissory note with Levin, intending that the documents should be used to secure a loan of $6,000 from the Steubenville' bank. He-knew that the representation that the real estate listed in the financial statement as owned jointly by his wife and himself was untrue.

A promissory note signed by Cunningham, on which Levin and wife were also obligated, was accepted by the bank; Levin and wife received $6,000; and Cunningham’s account with Elco Distributors, Inc., was credited with that amount. In supplying the money, the bank, as found by the referee, “relied in part upon the financial statement submitted and published by Cunningham.” According to the referee, neither the Levins nor their Elco corporation “relied upon the financial statement furnished by Cunningham” for the reason thát Levin admitted paying no attention to it. The bankrupt, Cunningham, “had been employed in a bank for a period of some five years prior to his business venture and was therefore familiar with banking practices and forms.”

In a carefully prepared ten-page opinion, the referee fully discussed the facts, quoting the most material evidence of record, which we deem it unnecessary to elaborate. It should be pointed out, however, that the referee quoted the admission of the bankrupt that his wife refused to sign the false financial statement, because it included her interest in the real estate. The bankrupt said that he included his wife’s real estate in the financial statement in the expectation that she would sign with him the promissory note given the bank.

Levin was active in procuring the money from the bank, but eventually had to pay the note executed by the bankrupt, Mrs. Levin, and himself. The referee concluded from the evidence and “from the statement of the bankrupt particularly” that he issued “the materially false statement in writing respecting his financial condition, and that he had thereby obtained money or property on credit, or obtained an extension or renewal of credit.” The referee found further that the bank “in furnishing the $6,000 involved herein did rely upon the false financial statement issued by the bankrupt.” The referee stated in his opinion: “The court does not find that the bank relied solely upon the false financial statement, and it is not necessary to so find to reach the conclusion herein made,” which was that the discharge of the bankrupt must be denied under section 14, sub. c(3) of the Bankruptcy Act. 11 U.S.C.A. § 32, sub. c(3).

In-an order reciting that the cause had been heard “on certificate of review filed by the bankrupt” and that the questions involved had been submitted on brief and carefully considered, the district judge found that the objections to the order of the referee were not well taken; and they were accordingly. overruled. The findings and conclusions of the referee were thus confirmed.

No principle has been more firmly established in this circuit than that concurrent findings of the referee in bankruptcy and the district judge are not to be set aside, except upon clear demonstration of mistake. Albinak v. Kuhn, 6 Cir., 149 F.2d 108; New Southern Ohio Gas Co. v. Roush, 6 Cir., 138 F.2d 411; In re Allied Products Co., 6 Cir., 134 F.2d 725; Lacka-wanna Pants Mfg. Co. v. Wiseman, 6 Cir., 133 F.2d 482; In re Penfield Distilling Co., 6 Cir., 131 F.2d 694; Kowalsky v. American Employers Ins. Co., 6 Cir., 90 F.2d 476; Petition of Johns-Manville Sales Corporation, 6 Cir., 88 F.2d 520; Ohio Valley Bank Co. v. Mack, 6 Cir., 163 F. 155, 158, 24 L.R.A.,N.S., 184. The first three points on appeal are invalid upon this principle, for the reason that they all challenge concurrent findings of fact of the referee and the judge, based upon substantial evidence and certainly not clearly erroneous.

In his statement of points to be relied upon in this court, appellant assigns only one other error. He charges error in “the conclusion of law that the Elco Distributors, Inc., could object to the debtor’s discharge and bankruptcy because of the false financial statement.” The point is not well taken.

The pertinent portion of the applicable statute reads: “The court shall grant the discharge unless satisfied that the bankrupt has * * * (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing or causing to be made or published in any manner whatsoever, a materially false statement in writing respecting his financial condition; * * * Provided, That if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which, under this subdivision c, would prevent his discharge in bankruptcy, then the burden of proving that he has not committed any of such acts shall be upon the bankrupt.” 11 U.S.C.A. § 32, sub. c.

It should be first observed that the statute does not require that an objecting creditor should be the person from whom the bankrupt obtained money or property on credit, or an extension or renewal of credit, by virtue of his false financial statement. Next, it should be noted that the burden is placed upon the bankrupt of proving that he did not make the materially false statement in writing once an objector has shown to the satisfaction of the court that there are reasonable grounds for belief that the bankrupt did make the materially false statement in consequence of which he obtained money or property on credit, or an extension or renewal of credit. In the instant matter, there is no question that the bankrupt published a materially false statement in writing in respect of his financial condition.

It is clear from the language of the statute that the purpose of Congress was to prevent any person from falsifying in writing his financial condition and thereby obtaining money or property on credit, or an extension or renewal of credit without suffering the consequential penalty of being denied the privilege of discharging his debts in bankruptcy. The objective was to prevent benefit from fraud or fraudulent falsification in commercial or any other sort of business transactions. A court of equity in protecting the rights of all creditors of a bankrupt will not shield dishonesty. The technical argument made here that the party objecting to the discharge had knowledge that the fraudulent misrepresentation in writing was untrue or even connived with the bankrupt should not be seriously considered.

When a person in hard circumstances obtains money or extension of credit from a bank by fraudulent misrepresentation in writing of his financial condition and thereby is enabled to stave off any creditor, the position of some creditor may be detrimentally changed. The apparently improved financial condition of the ultimate bankrupt could well lull a creditor into inaction where immediate action would have eventually protected his interest better than a bankruptcy court could subsequently conserve.

The opposition to the discharge of a bankrupt interposed by any creditor upon a lawful ground inures to the benefit of all creditors.

Relevant authorities will now be reviewed. The Court of Appeals for the Second Circuit has promulgated several opinions upon the subject under consideration. That court has directly held that the fact that a bank to whom the bankrupt gave a materially false financial statement in writing had been paid and was not objecting to the discharge did not entitle the bankrupt to his discharge over the objection of another creditor. An order of the district court granting the discharge was reversed and the discharge denied. In re Haggerty, 2 Cir., 165 F.2d 977. The court called attention to its earlier opinion in the case of In re Ernst, 2 Cir., 107 F.2d 760, 761, where it was said: “It is of no moment that one of the loans was paid before bankruptcy. Josephs v. Powell & Campbell, 2 Cir., 213 F. 627; nor that the bank is not opposing the discharge; In re Weinstein, D. C., 34 F.2d 964; nor that the bankrupt did not himself receive the proceeds of the loans. In re Dresser & Co., D.C., 144 F. 318. Affirmed, 2 Cir., 145 F. 1021.”

Moreover, it has been held in the Second Circuit that where nearly three years before the filing of a voluntary petition in bankruptcy the bankrupt had obtained a loan by means of a materially false statement in writing with respect to his financial condition but the loan had been paid about a year before the filing of the petition, the bankrupt was properly denied a discharge. In re Arky, 2 Cir., 138 F.2d 669. In another case, Margolin v. Moskowitz, 2 Cir., 157 F.2d 872, the denial by the district court of a discharge in bankruptcy was affirmed under the same subsection of the statute under consideration here, 11 U.S.C.A. § 32, sub. c, section 14, sub. c, Bankruptcy Act.

A case from the Second Circuit wherein the order of the district court discharging the bankrupt was reversed, In re Frumkin, 2 Cir., 82 F.2d 290, bears analogy to the instant controversy in the type of misrepresentation made by the bankrupt. There, the financial statement of the bankrupt made to the bank showed him to be the owner of a house, which was in fact owned by his wife. His excuse defending his admittedly false statement was that he had not meant to deceive the bank which, as holder of a first-mortgage on the house, knew or should have known, so he said, that it belonged to his wife and that he had a power of attorney from her giving him the widest authority. It was held that the bankrupt had the burden of proof upon the issue of his good faith, which he had not successfully carried.

Chief Judge Hutcheson of the Court of Appeals for the Fifth Circuit, when sitting by designation in the district court at Houston, denied a bankrupt’s discharge and made this statement with which we are in accord: “The statute denouncing the obtaining of money, property, or credit upon a materially false statement in writing made for the purpose of obtaining credit operates generally and completely to prevent the discharge of any person so offending. Gerdes v. Lustgarten, 266 U.S. 321, 45 S.Ct. 107, 69 L.Ed. 309; Morimura, Arai & Co. v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586; Levy v. Industrial Corporation, 276 U.S. 281, 48 S.Ct. 298, 72 L.Ed. 572.” In re Eastham, D. C., 51 F.2d 287.

In Morimura, Arai & Company v. Ta-back, supra, the Supreme Court, in reversing a judgment granting a discharge in bankruptcy, pointed out, 279 U.S. on page 33, 49 S.Ct. on page 215, 73 L.Ed. 586, of its opinion that the materially false statement in writing made by the bankrupt to obtain goods on credit “was made and acquiesced in either with actual knowledge that it was incorrect, or with reckless indifference to the actual facts, without examining the available source of knowledge which lay at hand, and with no reasonable grounds to believe that it was in fact correct.”

The opinion of Mr. Justice Holmes, in Levy v. Industrial Corporation, supra, denying the discharge of a bankrupt in consequence of his materially false statement in writing to obtain a loan to a corporation controlled by him, is illustrative of the principle to which we adhere.

In Harris v. Baker, 86 F.2d 936, 937, the Court of Appeals for the Ninth Circuit, in affirming the denial of a discharge in bankruptcy, asserted that intent to defraud is the basic ingredient of the acts of the bankrupt whose good faith must emphasize his acts in dealing with his property, that it is not essential that his creditors be ultimately defrauded in order to prevent his discharge; and that it “is the evil mind against which the bar is placed so as to guard against repetition, as well as give creditors a hold on the future activities of the bankrupt.” See also Yates v. Boteler, 9 Cir., 163 F.2d 953.

For illustrative opinions of the Courts of Appeals for the Fifth, Seventh and Tenth Circuits, in which discharges in bankruptcy were denied by virtue of the statute under discussion, see Klecka v. Shuttles Bros. 6 Lewis, 5 Cir., 115 F.2d 573; In re West, 7 Cir., 158 F.2d 858; In re Schwartz, 7 Cir., 133 F.2d 216; Mullen v. First Nat. Bank of Ardmore, Okla., 10 Cir., 57 F.2d 711. See likewise several district court opinions: In re Berley, D.C.E.D.N.Y., 39 F.Supp. 615; In re Forman, D.C.E.D.N.Y., 40 F.Supp. 889; In re Sheridan, D.C.D.N.J., 34 F.Supp. 286; In re Monsch, D.C.E.D.Ky., 18 F.Supp. 913. In the Berley case, a husband, in an application for a personal loan, listed realty owned by his wife in such manner as to give the impression that he owned it. This was held to defeat his discharge in bankruptcy. In the Forman case, where the bankrupt was denied his discharge on the ground that he had made a materially false statement in writing as to his financial condition to a bank from which credit was obtained in reliance thereon, it was held to be immaterial that the bank was not opposing his discharge or that the loan was paid off before bankruptcy, or that the proceeds of the loan were not received by the bankrupt. In the Sheridan case, the following statement in the certificate of the referee in bankruptcy was approved in denying a discharge: “it is the law that an objecting creditor can rely for opposing a discharge of a bankrupt on a false financial statement given to another creditor”. [34 F.Supp. 289.] In the Monsch case, District Judge Ford in denying the bankrupt’s petition for discharge, said: “It is not essential that, in extending credit, sole reliance be placed upon the false statement, but partial reliance thereon, in good faith, is sufficient.” [18 F.Supp. 915.]

In the case at bar, the vice-president of the Steubenville bank which made the loan testified that the financial statement of the bankrupt showed that he had “quite a bit of equity in property”, and along with the endorsement on the note was considered sufficient to justify the loan. In Albinak v. Kuhn, 6 Cir., 149 F.2d 108, this court affirmed the denial of a discharge in bankruptcy pursuant to the section of the Bankruptcy Act under consideration here. Cf. Sadler v. Hirshberg Bros., 6 Cir., 23 F.2d 245.

For the reasons which we have endeavored to make apparent, the order of the district court affirming the denial of the application for a discharge made by the bankrupt is affirmed.