In re A. D. Matthews' Sons, Inc.

Second Circuit

In re A. D. Matthews' Sons, Inc.

238 F. 785, 151 C.C.A. 635, 1916 U.S. App. LEXIS 1393

Court of Appeals for the Second Circuit·Decided December 12, 1916·No. No. 82·Published·Cited by 20 cases

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). That Matthews & Co. agreed to keep the proceeds of fashion company’s sales “in trust” for the latter’s benefit we shall assume, but not decide.

[ 1 ] With such assumption made, the burden of proof was upon the fashion company to clearly trace the proceeds of said sales into “some specific fund or property” in the hands of the trustee in bankruptcy (In re McIntyre, 185 Fed. 96, 108 C. C. A. 543; In re Ennis, 187 Fed. 728, 109 C. C. A. 476; In re Brown, 193 Fed. 24, 113 C. C. A. 348, affirmed as Schuyler v. Littlefield, 232 U. S. 707, 34 Sup. Ct. 466, 58 L. Ed. 806; In re See, 209 Fed. 174, 126 C. C. A. 120); and if petitioner did not succeed in carrying that burden of identification, if the evidence left the matter in doubt, such doubt must be resolved in favor of the trustee (Schuyler v. Littlefield, supra, 232 U. S. at page 713, 34 Sup. Ct. 466, 58 L. Ed. 806).

The petitioner sought recovery of proceeds of all sales after January 31, 1915, and until April 26th, when bankruptcy supervened, and to that end alleged that all cash from sales in Matthews’ store had been deposited in the Columbia Bank, though bankrupts had also an account with the Mechanics! Bank for the collection of checks. The proof was that cash received went to one of the two banks, or was kept in the store; and used for current expenses.

[2] On April 5th the account in Columbia Bank was overdrawn, and on March 10th the Mechanics’ Bank had but $145.05 of bankrupts’ money. If there had been any trust funds in either bank, they had therefore been dissipated except as to $145.05, nór can subsequent deposits to the credit of the same account be considered (per se) as restoring the trust. Schuyler v. Littlefield, supra; American Can Co. v. Williams, 178 Fed. 420, 101 C. C. A. 634.

[3] This reduces the petitidner’s demand to such sale proceeds as went into the bank account after April 5th and March 10th, respectively, plus $145.05 in Mechanics’ Bank. There is no proof whatever that any specific amounts of petitioner’s money were kept in “store cash,” much less that any such amounts passed into the trustee’s possession.

But further there is no proof as to what bank or fund received any of petitioner’s money; for all that appears it may all have been kept in the store, or all put in either bank. In other words, the most that petitioner can do toward bearing the burden of proof is to show that its [787]*787money was put In three funds, or some one or more of them; but when< or in what proportions cannot be spelled out. Such evidence amounts-’to no more than showing that somewhere there was in bankrupts’ possession or under its control, at all the times complained of, more cash, or credits than petitioner now claims. This is not identification at all, nor is it tracing, for cash is never traced by showing that it went into' the general estate; and the proof here goes no further. Ret the order under review be reversed, with costs of this court,

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HOUGH, Circuit Judge

(after stating the facts as above). That Matthews & Co. agreed to keep the proceeds of fashion company’s sales “in trust” for the latter’s benefit we shall assume, but not decide.

[ 1 ] With such assumption made, the burden of proof was upon the fashion company to clearly trace the proceeds of said sales into “some specific fund or property” in the hands of the trustee in bankruptcy (In re McIntyre, 185 Fed. 96, 108 C. C. A. 543; In re Ennis, 187 Fed. 728, 109 C. C. A. 476; In re Brown, 193 Fed. 24, 113 C. C. A. 348, affirmed as Schuyler v. Littlefield, 232 U. S. 707, 34 Sup. Ct. 466, 58 L. Ed. 806; In re See, 209 Fed. 174, 126 C. C. A. 120); and if petitioner did not succeed in carrying that burden of identification, if the evidence left the matter in doubt, such doubt must be resolved in favor of the trustee (Schuyler v. Littlefield, supra, 232 U. S. at page 713, 34 Sup. Ct. 466, 58 L. Ed. 806).

The petitioner sought recovery of proceeds of all sales after January 31, 1915, and until April 26th, when bankruptcy supervened, and to that end alleged that all cash from sales in Matthews’ store had been deposited in the Columbia Bank, though bankrupts had also an account with the Mechanics! Bank for the collection of checks. The proof was that cash received went to one of the two banks, or was kept in the store; and used for current expenses.

[2] On April 5th the account in Columbia Bank was overdrawn, and on March 10th the Mechanics’ Bank had but $145.05 of bankrupts’ money. If there had been any trust funds in either bank, they had therefore been dissipated except as to $145.05, nór can subsequent deposits to the credit of the same account be considered (per se) as restoring the trust. Schuyler v. Littlefield, supra; American Can Co. v. Williams, 178 Fed. 420, 101 C. C. A. 634.

[3] This reduces the petitidner’s demand to such sale proceeds as went into the bank account after April 5th and March 10th, respectively, plus $145.05 in Mechanics’ Bank. There is no proof whatever that any specific amounts of petitioner’s money were kept in “store cash,” much less that any such amounts passed into the trustee’s possession.

But further there is no proof as to what bank or fund received any of petitioner’s money; for all that appears it may all have been kept in the store, or all put in either bank. In other words, the most that petitioner can do toward bearing the burden of proof is to show that its [787]*787money was put In three funds, or some one or more of them; but when< or in what proportions cannot be spelled out. Such evidence amounts-’to no more than showing that somewhere there was in bankrupts’ possession or under its control, at all the times complained of, more cash, or credits than petitioner now claims. This is not identification at all, nor is it tracing, for cash is never traced by showing that it went into' the general estate; and the proof here goes no further. Ret the order under review be reversed, with costs of this court,

In re A. D. Matthews' Sons, Inc., 238 F. 785, 151 C.C.A. 635, 1916 U.S. App. LEXIS 1393 (2d Cir. 1916).

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