Atherton v. Emerson

85 N.E. 530, 199 Mass. 199, 1908 Mass. LEXIS 808

Opinion

Sheldon, J.

The plaintiff is the trustee in bankruptcy of the Eastern Commission and Importing Company, a corporation organized under the laws of New Jersey, but carrying on its business in this Commonwealth. The defendant was the president, treasurer, general manager and a director of the company. The bill is brought to recover from the defendant the amount and value of certain payments and transfers of property claimed to have been made to him by the company as unlawful preferences under the national bankruptcy act and also in violation of its charter and by-laws and of his official duties. U. S. St. 1898, c. 541. The master to whom the case was referred has sustained most of the contentions of the plaintiff; and if his report shall be confirmed, the plaintiff will be entitled to recover a large sum from the defendant. It will therefore be convenient in the first instance to consider the contentions made by the defendant upon the report and those of his exceptions to the report which are now insisted upon by his counsel.

It may be premised, however, that, so far as these exceptions are based upon the claim that the master’s findings upon questions of fact should upon the evidence have been other than they were, we have not found that they were well taken. The familiar rule that the master’s findings cannot be set aside or reversed unless it is shown that they are plainly wrong, is especially applicable in a case where the testimony was so voluminous and the controverted questions so many and so earnestly disputed as is shown by the record before us. Applying that rule,' a careful examination of the evidence does not show such error in any of the findings as to make it our duty to set them aside. It may be that upon some of the issues presented we should not have come to the same conclusions as those which the master has reachedbut we cannot say that any of them are plainly wrong. Nor would it serve any useful purpose to go over in detail the evidence upon any of these questions. As to the questions of law which have been discussed in the elaborate arguments of the parties, we will consider them in connection with the findings of the master.

One of the fundamental questions arises upon the finding of the master that on December 10, 1903, the company was insolvent within the meaning of the bankruptcy act, that is, that its liabilities then exceeded a fair valuation of all its property. Bankruptcy Act, § 1. Pirie v. Chicago Title & Trust Co. 182 U. S. 438. Churchill v. Wells, 7 Coldw. 364. In re Hines, 144 Fed. Rep. 142. The master also found that all payments of money and transfers of property made by the company to the defendant after that date were intended to give him a preference, and that he had reasonable cause to believe that the company was insolvent and intended to give him a preference. But the master admitted upon these issues evidence of the values of the company’s assets as estimated by the appraisers appointed in the bankruptcy proceedings, together with evidence as to purchases and sales made by the company in the intervening time and the condition of the stock, for the purpose of showing the market value of the goods in early December, 1903 ; and he has reported that “ though the probative weight of this evidence was light, it was sufficient to turn the scale,” and that without it he “ should not have found that the company was insolvent within the meaning of the bankruptcy act on December 10, 1903,” and that the defendant had reasonable cause to believe the facts above stated.

It appears by the report of the evidence that in the bank ruptcy proceedings against the company three appraisers, Messrs. Heath, Hatch and Mason, were appointed to appraise its property, and that they did so on April 11, 1904, and returned their appraisal to court. Two of these appraisers were called to testify as to the value of the property which they had seen and examined. The first witness, Hatch, was asked to state what in his judgment was the fair value of the property, and to refresh his recollection in answering from a certified copy of the appraisal made by himself and his associates. He answered that the amounts stated in that certified copy were correct, and then stated what those amounts were. Mr. Mason, after some general testimony as to the character of the stock, was shown the same certified copy, and was asked what were the fair values of the articles appraised. In substance he answered that he could not remember, that it was as stated on the paper shown him, i. e., the certified copy of the appraisal which he had joined in making. The defendant’s counsel, in answer to a question from the master whether he objected to the witness’s using that paper as strictly refreshing his recollection, answered, “ I don’t know anything about the paper.” The witness then said in answer to a further question, whether the values put upon the appraisal which was returned to the court were fair values, “ That is what I thought, yes.” Thereupon the certified copy of the appraisal was offered in evidence, and admitted, “as being an attested copy of the appraisal of these men appointed by the court.” The third appraiser was not called.

These two witnesses might well be found to have themselves sufficient acquaintance with such articles to testify about their value. The evidence as to the value of the property in April, 1904, might be found not to be too remote to bear upon its value in December, 1903, especially in view of the other evidence in the case. In re Elmira Steel Co. 109 Fed. Rep. 456. There is no doubt, however, that under our decisions neither the appraisal itself nor a certified copy thereof was competent as in itself evidence of the value of the property appraised. Kafer v. Harlow, 5 Allen, 348. Adams v. Wheeler, 97 Mass. 67. Bradford v. Cunard Steamship Co. 147 Mass. 55. It was not made by the defendant, nor was he privy to it, as in Sanborn v. Baker, 1 Allen, 526, Leighton v. Brown, 98 Mass. 515, 516, Wright v. Quirk, 105 Mass. 44, and Brigham v. Evan's, 113 Mass. 538. But it does not appear that this paper was admitted as itself furnishing any evidence. The master had expressly said that it was to be used only to refresh the recollection of the witness. But the witness Mason would go no further than to say in substance that the values stated on the paper were in his opinion the fair values of the articles. Under these circumstances, we cannot say that the master might not admit the paper, as being in reality a statement of the testimony of the witness. Roswald v. Hobbie, 85 Ala. 73. It is difficult to determine exactly what was meant by everything that was said between the master, the counsel on each side, and the witness; but, taking the statement of the evidence and the language of the report together, we cannot say that it appears that this paper was received or treated by the master as itself furnishing any evidence of the value of the articles appraised, or as being anything more than a statement of the evidence intended to be given by the witness Mason; and accordingly the defendant’s exception to its admission cannot be sustained.

Evidence that the assets, after the appraisal and after reasonable efforts, were sold by the receiver in bankruptcy to the defendant for $36,000, on April 16, 1904, was competent on the question of their value. The sale does not appear to have been too remote, and it was made to the defendant himself, by an officer of the court, whose duty it was to get the highest price obtainable, and who had made reasonable efforts for that purpose. The defendant concedes that a price obtained at a sale by auction is some evidence of value. Brady v. Finn, 162 Mass. 260, 267. Baker v. Seavey, 163 Mass. 522. The price obtained at a sale like this cannot be less competent upon the question of value than if the sale had been a forced one to the highest bidder, as,in Brady v. Finn, ubi supra. And see Kent v. Whitney, 9 Allen, 62. Newsome v. Davis, 133 Mass. 343. Ridge Avenue Bank v. Studheim, 145 Fed. Rep. 798. The very ground of the rule that the value of real property may be shown by evidence of actual sales of similar property is that such sales, whether public or private, are a trustworthy guide to the value of the property sold. O'Malley v. Commonwealth, 182 Mass. 196.

The testimony of what was said and done by the defendant or by others with his knowledge was competent, in connection with the evidence of the course of business of the corporation, to show his connection with that business, his acquaintance with what was done, his control of its affairs so far as he had such control, and his knowledge of the condition of its affairs and of its impending insolvency. And as one step towards establishing the liability of the defendant, it was competent to show the financial standing of the company and its actual insolvency four months before the beginning of the bankruptcy proceedings. We cannot find that the master erred as to these matters in admitting any of the evidence complained of. In re Englefield Colliery Co. 8 Ch. D. 388, 401. Exceptions to the rulings of a master upon the admissibility of evidence not plainly affecting his conclusions upon the real merits are not readily to be sustained. American Circular Loom Co. v. Wilson, 198 Mass. 182. Long v. Athol, 196 Mass. 497.

The master’s finding that the defendant had reasonable cause to believe that the company was insolvent and intended to give him a preference was based upon his ruling that this meant the existence of a state of things which, if known by a business man of ordinary prudence and intelligence, would cause him to believe that the bankrupt was insolvent and intended to give a preference. This ruling was correct. Allen v. French, 178 Mass. 539. Buchanan v. Smith, 16 Wall. 277. In re Pfaffinger, 154 Fed. Rep. 523. And see the cases collected in 5 Cyc. 370. But the defendant argues that, as the master has stated that he could not himself have found the insolvency of the company and the defendant’s reasonable cause to believe this fact and that a preference to him was intended, without taking into account the appraised value of the company’s assets and the amount realized upon the sale to the defendant in April, 1904, so the defendant, who could not have known these things in December, 1903, before they took place, cannot be charged with a knowledge and a reasonable cause of belief which the master could not then have found. This contention however rests upon a misconception of the master’s report. He has found that the defendant was fully acquainted from the first with the business of the company, and had actually reasonable cause to believe that it was insolvent and intended to give him a preference. The subsequent occurrences that have been stated were merely evidence which, in connection with other evidence, showed to the master the actual insufficiency of its assets to pay its debts. They were subsequent actions which showed the prior condition of insolvency. It by no means follows, simply because the master could not have found that prior condition without them, that the defendant, with his greater knowledge of the company’s affairs and of the real value of its stock in trade and choses in action, had not the reasonable cause of belief which the master found that he had. Many of the facts found by the master, taken by themselves, were not conclusive evidence, though known to the defendant, of its actual insolvency, or of the reasonable cause of belief on his part. Some of them, without more, would not even have warranted such a finding. Pirie v. Chicago Title & Trust Co. 182 U. S. 438. Grant v. National Bank, 97 U. S. 80. In re Pettengill & Co. 14 Am. Bankr. Rep. 757, 762. Martin v. Bigelow, 7 Am. Bankr. Rep. 218. But both the debtor’s intent and the preferred creditor’s reasonable cause of belief may be shown by circumstances. Hardy v. Gray, 144 Fed. Rep. 922, 926. Deland v. Miller, 11 Am. Bankr. Rep. 744. The defendant was not a stranger to the affairs of this company. As its president, treasurer and general manager, besides being a director, there was at least a presumption of fact that he knew of its actual financial condition. Graham v. Middlely, 185 Mass. 349, 356. Hill v. Marston, 178 Mass. 285, 286. To the same effect are Clay v. Towle, 78 Maine, 86, James Clark Co. v. Colton, 91 Md. 195, and Consolidated Tank Line Co. v. Kansas City Varnish Co. 45 Fed. Rep. 7, 11. The cases ■ which hold that a director is not chargeable as matter of law with the exact knowledge of the business transactions of the corporation or the contents of its books and papers, are beside the point and need not be considered.

On the facts found by the master, the transfer of the merchandise stored in warehouse, made on January 16, 1904, and the assignment of the choses in action made February 1,1904, were really made to secure past debts due to the defendant from the company.' The proceeds of the notes indorsed by him on the last day were applied almost entirely to taking up the company’s checks held by him; and it must now be taken that they were intended so to be applied. The fact that the papers purported to be either partly or wholly for loans to be made or for contemporaneous indorsements, cannot avail against the real transactions. If a part of the consideration had been for present or future loans or indorsements, but the transfers were made also to secure former indebtedness, we need not consider whether under the present bankruptcy act the transfer and assignment would have been wholly invalid as to this plaintiff. See Bolster v. Graves, 189 Mass. 301; Hill v. Marston, 178 Mass. 285; Bankruptcy Act, § 60 c; Reed v. Helois Carbide Specialty Co. 19 Dick. 231.

Accordingly we are of opinion that the master’s finding in favor of the plaintiff for the two sums of $8,629.48 and $4,652.92, being the value of the goods in warehouse and the amounts collected by the defendant on the choses in action, respectively transferred and assigned to him as already stated, must be sustained; and for the same reasons the like finding for $1,771.87 for preferential payments of money made by the company to the defendant after November 16,1903, must be sustained. We have not further considered whether the defendant can be held for such preferential payments during the interval between November 16, 1903,

Footnotes

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* and December 12 of the same year, because the master in dealing with the notes indorsed by the defendant and paid by the company has expressly found in the fifteenth paragraph of Ms report† that on the • earlier as well as on the later of these dates the company was insolvent both techmcally and within the meaning of the bankruptcy act. It may be added that one of the results of the continued dealings of the defendant with the company is, as the master has found in the eleventh para graph of his report,* that the defendant would be liable on this item for a greater amount than has been charged against him, if his liability were to be determined on December 12 rather than on the earlier date.

The company also paid at different dates on and after November 16, 1903, divers promissory notes of its own- to the total amount of $51,000. Each of these notes had been indorsed by the defendant; and the circumstances, as found by the master, are such that, if the payments had been made directly to him, the plaintiff would have been entitled to recover the total amount thereof from him. But the payments were made directly to the holders of the notes, although he, as the indorser, was the person benefited by the payments, and it was the intention of the company to give him a preference by the payments, and he had reasonable cause to believe that the company was insolvent and intended to give him a preference. The payments were made by the defendant as treasurer of the company in its behalf, at the respective dates of maturity of the several notes, and of course before the inchoate liability of the defendant as indorser had become fixed by their non-payment and due notice to him. R. L. c. 73, §§ 83, 106. There is no contention made that the holders of the notes had any reasonable cause to believe that a preference was intended to be given by their payment; and the trustee in bankruptcy, the present plaintiff, has no cause of action against them.

The national bankruptcy act provides in § 60, b, already referred to, that “ if a bankrupt shall have given a preference . . . and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had ” the reasonable cause of belief already mentioned, “it shall be voidable by the trustee, and he may recover the property or its value from such person.” The defendant contends that the cause of action given by this section is only against the person who actually has received the preference, by receiving himself the money or property transferred, and that the words “ or to be benefited thereby ” were inserted in the statute only to meet the contingency of money or other property having been transferred to one who was not a creditor, but where a creditor was to receive the benefit thereof. He relies also on the provisions of § 57, i, of the bankruptcy act, that “ whenever a creditor whose claim against a bankrupt is secured by the individual undertaking of any person fails to prove such claim, such person may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.” He argues that, as a guarantor or indorser merely as such has no standing to make proof in his own name, but cau prove only in the name of the creditor and can claim only upon his own payment to be subrogated to the rights of the original creditor, he is himself, especially where his liability has not yet become fixed, a mere stranger to the bankrupt estate, not having himself any of the rights of a creditor, and accordingly being incapable of receiving a preference or the benefit of a preference, and so not being liable to refund to the trustee in bankruptcy the amount of a payment made by the bankrupt to the creditor which cannot be recovered from the creditor himself, even though the payment was made for the purpose of relieving the indorser from a subordinate liability to the creditor which had not yet become fixed, and though it was intended to operate, as it has operated, for the relief of the indorser, and thus really to give him the benefit of a preference contrary to the provisions of the bankruptcy act.

In our opinion this is too narrow a construction of the statute. Its manifest purpose was to give a right of action against either the person who received the preference or the person who derived the benefit therefrom. In this case, the payments were really made by the defendant himself, though acting in his official capacity for the company; they were intended to operate ' for his benefit and to secure to him a preference by relieving him from the burden of the agreement which by his indorsement he had made to pay the notes if the company failed to pay them and certain further steps were taken by the holders. This object has been accomplished; he has secured relief from his agreement of indorsement, and has enjoyed the benefit of the preference intended. His case is within both the intent and the express words of the statute. This point was directly decided in Kobusch v. Hand, 156 Fed. Rep, 660. To the same effect are Landry v. Andrews, 22 R. I. 597, and James Clark Co. v. Colton, 91 Md. 195. Similar decisions were made under the bankrupt act of 1867. Bartholow v. Bean, 18 Wall. 635. Ahl v. Thorner, 3 N. B. R. 118. The decision made by the New York Court of Appeals since this case was argued, that under such circumstances the payment cannot be recovered back from the creditor to whom it was made, tends in the same direction. Perry v. Van Norden Trust Co. 192 N. Y. 189. We do not need here to consider the much controverted question, as to which there is at present in other courts an irreconcilable conflict of authority, whether the directors or other managing officérs of an insolvent corporation have the right to prefer themselves to other general creditors, or whether they have become subject to such fiduciary obligations to the creditors, in addition to their original obligations as trustees for the stockholders, as to make it their duty to see that all the corporate assets are applied fairly to the payment of all corporate debts without availing themselves of their controlling power and superior means of knowledge to gain any advantage to themselves as creditors over other creditors of the corporation. We have here préferences which come within the prohibition of the bankruptcy act, and we confine ourselves to the case which is presented. Upon the findings of the master, the defendant is chargeable with the sum of $51,000, the amount of the notes in question.

The master refused to charge the defendant with the sum of $7,746.23, paid by the company, after November 30, 1903, to Ropke and Otto, upon an open account for which the defendant was liable as a guarantor. The circumstances were in other respects like those already stated with reference to the promissory notes indorsed by the defendant. The master’s refusal was based solely upon his ruling that the allegations of the bill were not broad enough to cover this claim; and the correctness of this ruling is brought before us upon the plaintiff's exception.

The ruling was too strict. The sixty-ninth paragraph of the bill directly avers that the defendant “ was an indorser upon the notes of the company and was otherwise obligated for its debts to a very large amount, being upwards of forty thousand dollars, and that, while said corporation was insolvent, and while this respondent knew or had reasonable cause to know such condition of insolvency, he, while the treasurer and managing director as aforesaid, and in fraud of the rights of, and violation of his duty to, the creditors of said corporation, and with the intent to prefer himself as a contingent creditor of said corporation, and in fraud of the bankruptcy act, did willfully neglect and refuse to pay all other creditors of said corporation than those on whose claims he was contingently liable as surety; did delay them in the collection of their claims and in suits thereon and in filing a petition in bankruptcy against said corporation until he had secured the payment of said notes and obligations from the funds of said corporation; all of which was done within four months previous to the filing of the petition in bankruptcy against said corporation; that said payments constituted fraudulent preferences within the meaning of the bankruptcy act, and should be repaid by this respondent to this complainant.” And the eleventh prayer of the bill is “ that the payments by this respondent set forth in paragraph sixty-ninth of the bill be declared fraudulent and void as preferences under the bankruptcy act of the United States, and this respondent be ordered to account for all sums so paid out of the treasury of said corporation.” If it had been intended to insist upon the point that there was no direct aver ment of the actual payment of these notes and other obligations, that claim should have been specially made by demurrer. If the objection had been made that the total recovery now sought under these averments was much in excess of the sum named, “ upwards of forty thousand dollars,” that objection might have been obviated by a merely formal amendment, and must now be taken to have been waived. In our opinion, the plaintiff’s seventh exception to the master’s report must be sustained, and the defendant must be charged with the further amount of this payment.

The master was warranted in charging the defendant with the profits made by him on the purchase of the accounts of the Daisy Manufacturing Company and Schlessinger and Company. He well might find that the defendant was acting for the company in these transactions, and so that he could hold the company only for the amounts actually paid by him. Bulkley v. Whitcomb, 121 N. Y. 107. Higgins v. Lansingh, 164 Ill. 301. In re Imperial Land Co. 4 Ch. D. 566. But for the same reason he cannot be charged with the full amount of these claims on the ground that their payment was an unlawful preference to him. If, however, we accepted the defendant’s contention that he purchased these claims acting wholly in his own behalf, and not in any way for the benefit of the company, as he might have done, (Glenwood Manuf. Co. v. Syme, 109 Wis. 355; Bradly v. Marine Phosphate Co. 3 Hughes, 26,) we should be unable to avoid the conclusion that the subsequent payment of these claims to him by the company was an unlawful preference to him, and that he was chargeable with the full amount thereof.

The master has charged the defendant with a sum of more than $9,000 for the amount of salary received by him in excess of a fair compensation for services rendered. Upon his findings, we are of opinion that this was correct. Union Pacific Railroad v. Credit Mobilier, 135 Mass. 367, 376. Kelley v. Newburyport & Amesbury Horse Railroad, 141 Mass. 496, 499. Nye v. Storer, 168 Mass. 53, 55. Fillebrown v. Hayward, 190 Mass. 472, 478. Raynolds v. Diamond Mills Paper Co. 3 Robbins, 299. Davis v. Thomas & Davis Co. 18 Dick. 572. Gardner v. Butler, 3 Stew. 702. Wayne Pike Co. v. Hammons, 129 Ind. 368. It does not appear that there has been such a ratification of the action by which his salary was fixed as would be binding upon this plaintiff. Von Arnim v. American Tube Works, 188 Mass. 515, 518. We do not find it necessary to determine how far if at all the defendant’s rights in this respect were limited by the law of New Jersey in consequence of the fact that the company was incorporated under the laws of that State. Nothing has been shown to increase his rights. We cannot say, however, that the master’s finding, that the salaries as voted by the directors did not include dividends, was either wrong as matter of law or unwarranted by the evidence, though it well may be that we should have felt equally bound if a contrary finding had been made. And the ruling that what was done did not upon the findings made amount as matter of law to a declaration of dividends, was correct.

There is no occasion to discuss in detail the exceptions of either party not covered by what has been said, although they have all been carefully examined and considered. So far as they are material to the conclusions which we have reached, they ought not to be sustained.

The plaintiff’s seventh exception to the master’s report should be sustained; all the other exceptions of each party should be overruled; and a decree should be entered for the plaintiff for the sums found by the master and the further sum of $7,746.23, with interest upon the whole amount from the date of the filing of the bill.

So ordered'.

On this matter, the master found that the defendant “ was doing business under the name of H. P. Emerson & Company and had continuous, dealings with the company from its organization until early in March, 1904. After November 16, 1903, he collected from the company on account of his dealings $1,771.87 more than he gave it credit during the same time ; and from December 16 to March 16 he collected $2,602.41 in excess of credits given to the company for the same time.”

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The finding in the fifteenth paragraph of the report to which reference is here made was as follows : “ The company paid the following notes which had been endorsed by Mr. Emerson, viz: —

Nov. 16, 1903 Colonial National Bank note for $2,500.00

Dec. 10, <( Mt. Vernon Nat’l Bank 66 66 5,000.00

66 15, 66 66 66 « 66 66 5,000.00

66 21, 66 Colonial National Bank <6 66 2,500.00

66 28, 66 66 « 66 66 66 5,000.00

a 29, 66 66 66 66 66 66 1,000.00

Jan. 1, 1904 “ 66 66 66 66 5,000.00

66 5, 66 66 66 66 66 66 5,000.00

66 11, 66 66 66 66 66 66 5,000.00

it 15, 66 66 66 16 66 66 5,000.00

it 21, 66 66 66 66 66 66 5,000.00

Feb. 1, 66 66 66 66 <6 66 2,500.00

« 5, 66 (C Total 66 66 66 <6 2,500.00 $51,000.00

“ All of these payments were made by Mr. Emerson as treasurer in the company’s behalf. The company at the time of each payment was technically insolvent and insolvent within the meaning of the bankruptcy act. Mr. Emerson was the person benefited by the payment of these notes. The company intended by each one of these payments to give Mr. Emerson a preference, and he had reasonable cause to believe that the company was insolvent and intended to give him a preference.”

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This paragraph is quoted in the first footnote on the preceding page.