In re Turetz , 205 F. 400 ( 1913 )

J. B. McPHERSON, Circuit Judge.

We regret the necessity of returning this matter to the excellent and careful referee by whom the order of November 22, 1912, was made. The trouble with his report is that (no doubt from inadvertence) he does not find the ultimate facts of the disputé, but practically confines himself to a summary of the testimony and a statement of his disbelief therein. But this is merely negative, and we need something definite, especially when we consider what may be the consequences of a failure to comply with an order to deliver the goods in controversy to the trustee. We need to know the facts, not merely the evidence about the facts; and this is emphasized by the mass of testimony that has been taken, and by the fact that the referee heard and saw the witnesses and is much better able to find the facts than we can possibly be. To illustrate what kind of findings is required, we may ask the following questions: What has become' Of'the goods in question? Were they sold.? If so, what are the details of the sale, as far as possible ? If not sold, where are they, and in whose possession or control? These questions áre not intended to be exhaustive, but may serve as illustrations.

The order of November 22, 1912, is therefore .reversed, and the inquiry is recommitted to the referee for a supplemental report in accordance with the foregoing opinion. The usual notice of the preparation'of the report' and of the new order to be given to counsel, so that they may take such action with reference thereto as they may think advisable. The report to be prepared and submitted to counsel for this purpose within 10 days.