Davison-Paxon Co. v. Caldwell

115 F.2d 189, 133 A.L.R. 432, 1940 U.S. App. LEXIS 2832
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 29, 1940
Docket9645
StatusPublished
Cited by110 cases

This text of 115 F.2d 189 (Davison-Paxon Co. v. Caldwell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davison-Paxon Co. v. Caldwell, 115 F.2d 189, 133 A.L.R. 432, 1940 U.S. App. LEXIS 2832 (5th Cir. 1940).

Opinions

HUTCHESON, Circuit Judge.

The suit was to enjoin the enforcement by garnishment against plaintiff of a state court judgment for debt. It was brought in the bankruptcy court on the ground that the debt had been discharged in bankruptcy, and because of the settled but erroneous state of the decisions in Georgia,1 ****plaintiff had been compelled to invoke the jurisdiction of the bankruptcy court.2 The de[190]*190fendant contested the suit on the ground (1) that the matter was one for decision in the state courts and not for the invocation of the bankruptcy jurisdiction; (2) that the judgment it had obtained was a conclusive adjudication that the debt was not discharged in bankruptcy. The district judge maintaining his jurisdiction on Hunt v. Loan Company and determining the effect of the state court judgment on the pleadings in that court, concluded that the debt was dischargeable and had been discharged and granted the relief prayed. '

This appeal tests the correctness of that ruling. This is the record on which it rests.

On February 22, 1939, appellant here filed suit against appellee in the municipal court of Atlanta for $444.58 on account of merchandise purchased from it for the period from September, 1936, to December, 31, 1938, as per itemized statement attached to the petition. On March 2, 1939, she filed a plea to the jurisdiction of the state court based on her alleged non-residence, and on March 6, 1939, she filed her voluntary petition in bankruptcy scheduling defendant as one of her creditors and was duly adjudged bankrupt.

On March 24th, appellant filed in the state court suit an amendment alleging:

“1. That at the time the defendant purchased the merchandise listed on the itemized statement marked ‘Exhibit A’ and attached to the petition, defendant was insolvent and had no present intention to pay for same and concealed her insolvency and intention to pay for same, and concealed her insolvency and intentions with respect to said purchases from your petitioner.
“2. That your petitioner relied on the defendant’s promise to pay for same, and was damaged in that it lost merchandise of the value listed in the itemized statement marked ‘Exhibit A.’
“3. That the action of the defendant in purchasing said merchandise without a present intention to pay for same, and knowing her promise to pay for same was false, was deceitful and fraudulent.
“4. That your petitioner is damaged in the sum of $444.58, plus interest at 7% per annum from August 1, 1937 to date.”

Whereupon, on March 29th, appellee defendant in that suit filed a plea for a stay, setting out therein that the debt upon which the suit was predicated was dischargeable in bankruptcy. On April 3rd, the plea to the jurisdiction was overruled, as waived by defendant’s filing her plea for a stay in bankruptcy, and there was a judgment as follows:

“The within case coming on before me for trial after the petition was amended and facts introduced to support the amendment with reference to all allegations therein and the petition,
“It is considered, ordered and adjudged that the pltf. recover of the defendant in the sum of Three Hundred and Twenty and 88/100 ($320.88) Dollars and all costs of this action.”

Appellee was granted her discharge and it was ordered that she “be discharged from all debts and claims in bankruptcy which are made provable by said acts against her estate excepting such debts as are by law excepted from the operation of a discharge in bankruptcy.” In July, 1939, she filed in the bankruptcy court, an application for injunction, reciting these facts and that notwithstanding her discharge, Davison-Paxon, plaintiff in the state court suit, had sued out a garnishment against her employer to collect on the judgment debt which had been discharged in bankruptcy.

It was not denied below, it is not denied here, that the decisions of Georgia are to the effect that a debt contracted as, according to the amended petition this debt was, is, within the exception of Sec. 17, sub. a (2), of the Bankruptcy Act,3 “a liability for obtaining money or property by false pretenses or false representations.” What was in question below, what is in question here is whether a debt created as this one was, according to the allegations of the amended petition, is such a liability.

The district judge thought it was not. We agree. But for the Georgia decisions holding that the purchase of goods with no present intention to pay, results in a debt which is a liability for obtaining money or property by false pretenses and false representations, we should regard the question as admitting of only one answer. The amended petition carefully refrains from charging that the defendant represented anything or made any pretenses. It charges that she was insolvent, that she had no present intention to pay for the goods purchased and that [191]*191she concealed her insolvency and intention to pay for the same from the plaintiff and that her conduct in purchasing the merchandise without present intention to pay for same and knowing that she was insolvent, was false, deceitful and fraudulent. We think it can hardly be doubted that her conduct in so doing was deceitful in the sense that she did not act in a straightforward and honest way in not making full disclosure of her financial condition, but such conduct is not within the exception. It does not except from discharge, debts created by obtaining credit through concealment of insolvency and present inability to pay. It excepts from discharge “Liabilities for obtaining money or property by false pretenses or false representations.” Within the meaning of that statute then, there were no false pretenses, no false representations here. There was merely the obtaining of credit without full disclosure with the knowledge that if full disclosure had been required, credit might well not have been given, but that was all. A remedial statute, like that of bankrutpcy intended for the relief of debtors, must, insofar as denial of discharges and therefore of relief, be construed strictly so that all debts except those coming exactly within the exception will stand discharged. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717.

Appellant, conceding of course that the judgment in the state court suit is not res judicata of the question whether the debt was dischargeable in bankruptcy, because the judgment was rendered before the discharge, insists that the judgment is conclusive, that the facts are as pleaded in the amendment, and that, though there was no overt statement or representation made, the purchase on credit was an implied representation that appellee intended to and could pay for the purchased goods.

In support of 'this view appellant in addition to its reliance on the Georgia cases puts its reliance on the generally settled rule of law that a purchase of the kind pleaded is deceitful and because of that deceit, the sale may be rescinded. This is certainly true but this is not the question before us.

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Bluebook (online)
115 F.2d 189, 133 A.L.R. 432, 1940 U.S. App. LEXIS 2832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davison-paxon-co-v-caldwell-ca5-1940.