International Minerals & Chemical Corporation v. Harry Moore, Jr., as Trustee for and on Behalf of the Estate of Billie Sol Estes

361 F.2d 849

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 1966
• Docket: 22181
• Status: Published

Opinions

GEWIN, Circuit Judge:

This is an appeal from the judgment of the United States District Court for the Northern District of Texas in a bankruptcy case. Appellee, the Trustee in Bankruptcy of the estate of Billie Sol Estes, recovered judgment against International Minerals & Chemical Corporation (International) in the court below for the sum of $8,518.55, representing the proceeds of two checks issued to International by one of the Estes’ proprietorships, and paid within four months of bankruptcy. Appellee successfully contended in the trial court that such payments constituted voidable preferences under Sections 60(a) and (b) of the Bankruptcy Act, 11 U.S.C.A. § 96.

The singular issue presented both to the trial court and on this appeal is whether International, or its agents acting with reference thereto, had reasonable cause to believe that Billie Sol Estes was insolvent at the time the payments in question were made. The District Court sitting without a jury ruled that International had knowledge of facts sufficient to put it on inquiry with reference to the financial stability of Estes’ commercial activities, and consequently had reasonable cause to believe, under Section 60(b) of the Bankruptcy Act, that the debtor was insolvent at the time the questioned payments were made. No authority is cited in support of the District Court’s holding. The District Court entered one conclusion of law which reads:

“Under and by virtue of the provisions of Section 60 a and b of the Bankruptcy Act (11 U.S.C., Sections 96 a and b) the transfers made on or about December 15 and December 16, 1961, in the total amount of $8,518.55, constitute preferences which are voidable and recoverable by the Plaintiff for the benefit of the bankrupt estate.”

International contends that the above ruling is infected with error because there was insufficent evidence to support such a conclusion.

The basic facts involved are essentially undisputed. Aside from documentary evidence which is before us for examination, there was only one witness. The decision of the District Court is not based on credibility determinations. In the circumstances here present our scope of review is not as restricted as it would be where the facts are disputed and credibility findings are involved. Rule 52(a), F.R.Civ.P.; Galena Oaks Corp. v. Scofield (5 Cir. 1954) 218 F.2d 217; Mitchell v. Raines (5 Cir. 1956) 238 F.2d 186; Mayo v. Pioneer Bank & Trust Co. (5 Cir. 1961) 297 F.2d 392.¹

The Petition in Bankruptcy was filed on April 7, 1962. International had previously engaged in substantial business transactions with Estes on an open account basis since the year 1956. In June of 1958, its records reflected that credit sales to Estes totalled approximately $146,631.00. This figure was rapidly approaching the total credit limit of $150,000.00 allowed Estes by International. On or about June 1, 1958, International took three $50,000 notes from Estes due and payable December 31, 1958, to evidence the indebtedness on the open account balance. These notes were not paid at maturity. Consequently, International ceased doing business with Estes except on a strictly cash basis during early 1959, and in June of 1959 terminated its business relationship with Estes entirely because of its prior difficulty in note collections, the debtor’s unorthodox sales practices, and because, as its area sales manager testified, “ * * * we were not in the loan business but in the fertilizer manufacturing and selling business.” Thereafter, International continued to press Estes for payment as any prudent business man would do, and, finally, in late 1959 or early 1960, it entered into a financing arrangement with Estes for the repayment of a part of the indebtedness. Under the terms of this arrangement, Estes delivered to International a series of twelve post-dated checks for $5,000 each, dated consecutively on the 15th of each month beginning January, 1960, and running through December, 1960. This post-dated check arrangement was preferred because it alleviated the necessity of re-contacting Estes each month for a payment. International’s area sales manager, the sole witness in the case, testified that such a financing arrangement was not unusual in their type of business and that “ * * * we frequently get postdated checks from customers.” Each of these checks was paid when presented. In the latter part of 1960 or early 1961, Estes delivered to appellant another series of twelve postdated checks, each in the amount of $6,550.40, dated consecutively for the months of calendar year 1961, plus a check for interest on the unpaid balance in the amount of $1,963.45, which was also dated in December, 1961. This series of checks liquidated the entire indebtedness and each check was paid when presented. Both the December 1961 check for $6,550.40, plus the interest check, were paid on presentment, such presentment date being within four months of bankruptcy.² The present litigation concerns only these latter two payments.

During the course of business dealings with Estes, International, through its area sales manager, carried on an extensive correspondence with both Estes and its home office in Illinois. Most, if not all, of this correspondence was introduced in evidence in the lower court, and from the general tenor and content of these writings, the trustee in bankruptcy-sought to prove that International did have “reasonable cause” to believe in the insolvency status of Estes at the time of the last two payments in December, 1961. Many of the letters from the sales manager of International to Estes contained the usual language found in “dun” notices, calling attention to the overdue balance and asking for either a partial or total remittance. Several threatened legal action if a payment on account was not forthcoming. Inter-Office Memoranda were also exchanged between the area sales manager and various corporate officers of International. For example, the Trustee’s Exhibit No. 8 was an InterOffice Memo dated February, 1960, signed by the area sales manager and addressed to the General Credit Manager of International. The following language in this memorandum is heavily relied upon by the Trustee to sustain his argument that International had reasonable cause to believe Estes insolvent:

“I still believe he will work out and that we will get all our money eventually unless someone sues him for a size-able amount and throws him into bankruptcy. So far he has been able to avoid that. But the fear that that might happen is the reason we have requested the collateral notes so that we would have at least something to fall back on in the event a suit was filed or that he went into bankruptcy for other reasons.”

Counsel for the Trustee asked the area sales manager the following questions relative to the above memorandum:

“Q. So, at that time you at least had a fear that he might be thrown into bankruptcy?

“A. Mr. Rochelle, we never had any fear of eventually collecting our money. We had a fear that we weren’t going to get it in time and we didn’t get it in time, but we kept hammering at it until we did get it.

“Q. What do you mean when you say you didn’t get it in time ?

“A. Well, it wasn’t paid when it was due.”

The Trustee’s Exhibit No. 9 was a memorandum dated February 24, 1960, addressed to the area sales manager from one A. B. Cunningham, Assistant General Credit Manager of International, in which the following statement appeared:

“I believe, as you do, that we will eventually collect our money provided there is no bankruptcy brought about by a suit for a sizeable amount or other reasons.”

Appellee’s counsel then inquired of the witness:

“Q. So Mr. Cunningham also, did he not, have the fear that there might be an intervening bankruptcy in the matter?

“A. He’s repeating more or less what I told him, which information came only from me, in other words, continuing pressure to collect our money.”

Additionally, the Trustee introduced certain Dun and Bradstreet reports concerning Estes in an attempt to bolster his argument that International had knowledge of the bankrupt’s insolvency sufficient to place it within the proscription of Section 60(b) of the Bankruptcy Act at the time of the last two payments in question. International’s area sales manager testified that these reports were ones normally requested with respect to all of their accounts. It is important to note that the last Dun and Bradstreet reports were rendered in October, and December, 1960, some twelve to fourteen months prior to the date of payment of the checks now in issue. One of the reports contained the following statement concerning Estes’ commercial dealings: “Activities continue to be deversified [sic], however, financed primarily on credit basis with encumbrances moderately heavy.” This report stated further that expansion had been very rapid, and "Because certified financial information is lacking, as well as some slowness continuing to be reported with suppliers, it is impossible to evaluate the present status of subject business for credit purposes.” At the time this report was received, appellant was receiving $5,000.00 per month from Estes by virtue of the post-dated check agreement. As previously indicated, all of the post-dated checks were promptly paid upon presentment at regular monthly intervals during the years 1960 and 1961.

Viewing the evidence and the supporting exhibits in their entirety under the broad mandate of Rule 52(a), and the cases cited earlier, we are compelled to conclude that the evidence adduced in the court below reveals a hiatus in proof fatal to the appellee’s case. Two principal reasons compel a reversal.

First: “Reasonable cause” as used in the Bankruptcy Act, providing that a preference may be avoided in a suit by the trustee if the payee had reasonable cause to believe that a preference would be effected, means knowledge of such facts which would induce a reasonable belief as opposed to suspicion. The proof is also sufficient to support a finding of reasonable cause if the person alleged to have received a preference, or his agent, has knowledge of such facts as would induce a person of reasonable prudence to make appropriate inquiry, in circumstances in which such inquiry would have revealed the facts essential to a knowledge of the true situation. Canright v. General Finance Co. (7 Cir. 1941) 123 F.2d 98; Mayo v. Pioneer Bank & Trust Co., supra. The evidence shows that International had done a large volume of business on an open account, unsecured basis with the debtor up to June, 1959. At that time it ceased doing business with the debtor primarily because of his then heavy indebtedness to it. After a period of approximately one and one-half years from the due date of -the original notes evidencing the indebtedness, International persuaded Estes to pay his debt by a series of postdated checks running over a two year period. This course of business dealings continued for the two years agreed upon unabated by any indication of financial insolvency.

Anxiety on the part of a creditor which leads him to seek security for his claim is not the equivalent of reasonable cause to believe the . debtor insolvent, especially where, as here, such anxiety was not shown to exist later than some twelve to fourteen months before actual bankruptcy. Everett v. Warfield Mining Co. (4 Cir. 1930) 37 F.2d 328; Moran Bros., Inc. v. Yinger (10 Cir. 1963) 323 F.2d 699.

Second: The burden was upon the trustee to prove that at the time the last two checks were paid, International had reasonable cause to believe that the enforcement of payment would effect a preference in accordance with the criteria herein outlined. We are firmly convinced that the Trustee did not meet this burden. The Estes business enterprises were varied in scope. Many were seasonal in nature as was the fertilizer business from which this litigation developed. The Dun and Bradstreet reports admitted that Estes’ financial structure was diversified and was subject to fluctuations. In the case of any business conducted on an essentially seasonal basis, conditions which exist today may rapidly change within a short space of time. One cannot say with dogmatic certainty that what existed in 1959 and early 1960 will ipso facto exist in late 1961. Even the fact, if it be a fact, that in 1959 or early 1960 International may have had reason to suspect that a transfer then would have effected a preference, is not to say that such a belief, or reasonable cause therefor, would still exist in December 1961 without cogent proof.³ Grant v. First National Bank (1887) 97 U.S. 80, 24 L.Ed. 971; Nichols v. Elken (8 Cir. 1915) 225 F. 689; Charlesworth v. Hipsh (8 Cir. 1936) 84 F.2d 834.

The cases and authorities are uniform in holding that a showing of insolvency existing at one time does not create any presumption that it existed at a prior or subsequent time, unless the intervening period is relatively short and there is some evidence showing no change in circumstances. At the time of the payments here in issue, in December 1961, the facts fail to warrant a finding of reasonable cause for belief in Estes’ insolvency. Cusick v. Second National Bank (1940) 73 App.D.C. 16, 115 F.2d 150; Dinkelspiel v. Weaver (D.C.Ark.1953) 116 F.Supp. 455; 1 Collier, Bankruptcy, Sec. 1.19(5), p. 124 (14th ed. 1964). This is not a case where the appellant got with Estes on the eve of bankruptcy and pressured him into a transfer of the property in question. Nothing happened during the year 1961 to excite suspicion sufficient to charge appellant with the fact that it was obtaining a preference. No connecting evidence of suspicion of insolvency was shown between the time when the postdated checks here involved were agreed upon, and the date of the last payments due on the indebtedness. If the postdated checks had been returned because of insufficient funds, or had Estes requested further extensions in order to liquidate his account, or if International had received information of insolvency or been apprised of such facts as would constitute reasonable cause to believe insolvency existed, the result reached by the District Court would have been more legally compelling. Furthermore, the record does not disclose that International closed its eyes to information it should have known about the financial condition of the bankrupt.

We conclude that International had no reasonable cause to believe that Estes was insolvent when it received payment of the last two checks to close the account in December 1961, even though the same were received within four months of the debtor’s bankruptcy. The decision of the District Court is reversed.

1 . In the Mayo case the rule is stated as fellows:

“Under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. the trial judge’s findings of fact are conclusive unless clearly erroneous, but when the factual determination is primarily a matter of drawing inferences from undisputed facts or determining their legal implications, appellate review is far broader than where disputed evidence and questions of credibility are involved. Mitchell v. Raines, 5 Cir., 1956, 238 F.2d 186; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217. Our scope of review in this case is broad, since the decision turns not on what the officers of the bank in fact believed, but on what they had ‘reasonable cause’ to believe; and, most of the basic facts are undisputed.”

2 . It was stipulated that: the cheeks were paid on December 15 and 16,1961 and the Bankruptcy petition was filed on April 7, 1961.

3 . The following is from the testimony of the only witness in the case:

“Q. As far as you know, had anybody with your company received any information concerning the financial condition of Mr. Estes between the period June ’59 to December 1961 other than through Dun & Bradstreet?

“A. No, sir.

“Q. Had you talked to any of his other creditors about whether he was paying them or not?

“A. No, sir, we did not.

“Q. Did you ever hear anything derogatory about his financial condition during that period?

“Q. Did you ever hear during that period anything derogatory about his honesty or integrity?

“Q. Did you know or had you been informed or had you heard during that period that any of his assets that might have been listed anywhere — in the Dun & Bradstreet report or elsewhere — were non-existent?

“Q. Did you know during the period that you were dealing with Mr. Estes anything about his general reputation among the business community?

“A. Well, he had a very good reputation when we started dealing with him. X recall some years before he had been named as the outstanding young man of the year, X believe, by the National Junior Chamber of Commerce and was written up in Coronet magazine.

“Q. Had he been active in other organizations?

“A. Yes, and he had quite a following among the farmers in the Pecos area and was known more or less as a friend of the farmers in that area.

“Q. And down and through December 1961, had you ever heard anything derogatory about him?

“A. No, sir.”