Kreitlein v. Ferger

238 U.S. 21, 35 S. Ct. 685, 59 L. Ed. 1184, 1915 U.S. LEXIS 1640

• Court: Supreme Court of the United States
• Decided: June 1, 1915
• Docket: 157
• Status: Published

Opinions

Mr. Justice Lamae

delivered the opinion of the court.

In 1897 Ferger brought suit against Kreitlein in an Indiana court. The pleadings in that case are not set out in the record and the nature of the suit does not appear except as it may be inferred from the special findings of the jury, copied in this record, which show that 'when Kreitlein purchased the flour in November, 1895, he was insolvent. He made no false representations as to his financial condition . . . the plaintiff understood that the sale was for cash.’ These answers, and the fact that the judgment was for ''$300 damages” indicate that that suit was in the nature of an action of trover for the recovery of flour. This judgment rendered November 23, 1897, was not paid; and in 1907, ten years later, Ferger brought the present suit against Kreitlein on that judgment, alleging that it ''was not for any debt growing out of or founded upon a contract express or implied.” The defendant filed a plea that in 1905 he had received his discharge in bankruptcy.

At the trial the plaintiff introduced the judgment of 1897; testified that it had not been paid, and that 'until lately he did not know that Kreitlein had gone through bankruptcy, having had no notice of it.’ The defendant then introduced a certified copy of his discharge, dated November 11, 1905. He also offered a copy of the record in the bankruptcy proceedings, including the '-'Schedule of Creditors,” in which appeared an.entry showing a debt in 1895 of $271.85, for merchandise, to C. Ferger, Indianapolis.

The plaintiff objected to the admission of this record ''for the reason that the testimony shows that he [Ferger] has not had any notice of this bankruptcy proceeding . . . and for the further reason that this is an action on a judgment. The schedule shows that it is on an account. The records show that this was reduced to a judgment in 1897 and this schedule was not filed until 1905.” The objection was overruled and the record admitted. No further evidence was offered and thereupon the court entered judgment for the plaintiff. That judgment having been affirmed by the Appellate Court of Indiana, the case was brought here by Kreitlein .who insists that by the Federal law he was relieved from liability on the pre-existing judgment.

. 1. Under the provisions of § 30 of the Bankruptcy Act this court has prescribed the form [59] of the “Order of Discharge” which, among other things, contains a recital that the bankrupt has been discharged from all provable debts existing at the date of the filing of the petition, “excepting such as aré by law excepted from the operation of a discharge in bankruptcy.” Section 2If further declares that a certified copy of such order “shall be evidence of the jurisdiction óf the court, the regularity of the proceedings, and of the fact that the order was made.” This provision of § 21f was made.in contemplation of the fact that the Bankrupt might thereafter be sued on debts existing at the date of the filing of thé petition in bankruptcy; and was intended to relieve him of the necessity of introducing a copy of the entire proceedings so that he might obtain the benefit of his discharge by the mere production of a certified copy of the order.

There áre only a few cases dealing with the subject but they almost uniforrialy hold that where the bankrupt is sued on a debt existing at the time of filing the petition, the introduction of the order makes out a prima fade defense, the burden being then cast upon the plaintiff to show that, because of the nature of the claim, fáilure to give notice or other statutory reason, the debt sued on was by law excepted from the operation of the discharge. Roden Co. v. Leslie, 169 Alabama, 579; Tompkins v. Williams, 206 N. Y. 744, affirming the opinion in 137 App. Div. 521; Van Norman v. Young, 228 Illinois, 425; Beck v. Crum, 127 Georgia, 94; Laffoon v. Kerner, 138 N. Car. 281. Compare Hancock v. Farnum, 176 U. S. 645. There were some decisions to the contrary under the Act of 1841. Among them was Sorden v. Gatewood, 1 Indiana, 107, which held that when the bankrupt was sued on a valid claim he was obliged to show that the plaintiff's debt was among those which had in law-and in fact been discharged. It was probably because of this decision of the state court that the defendant Kreitlein felt compelled to. offer the schedule in order to show that Ferger was one of the creditors listed in the bankruptcy proceedings. The issue now is whether the prima facie defense made out by the production of the certified copy of the Order was disproved by the introduction of the bankruptcy record. That question- can best be answered by considering the various reasons, the defendant in error advances in support of his contention that the discharge of 1905 did not operate to relieve Kreitlein from the debt now represented by the judgment of 1897.

2. On the part of Ferger it is said that this suit is on a judgment for $300 rendered in an action not “founded upon a contract express or implied” — and it seems to have been claimed that the judgment was not a provable debt within the meaning of § 63 .(a. 4), of the Bankruptcy Act; But the special finding of the jury in that case showed that in purchasing the flour Kreitlein had not made any fraudulent concealment or misrepresentation as to his financial condition. • Besides the judgment was a provable debt even though rendered in a suit where the creditor' had elected to bring an action in trover, as for a fraudulent conversion, instead of assumpsit for a balance due on open account. Crawford v. Burke, 195 U. S. 176, 193.

3. Ferger- next insists that there is a want of identity between the debt sued on and that said to have been discharged. This contention is based upon the fact that the schedule lists an ‘account for merchandise for $271 in 1895 in favor of C. Ferger,’ while the present suit is on a ‘judgment for $300 damages rendered in favor of Charles Ferger in 1897.’ The difference between the two amounts is probably explained by the fact that there had been an accrual of two years’ interest before the judgment was rendered. Besides the books of the debtor and of the creditor may not have exactly agreed and in the absence of fraud and injury such discrepancy would not invalidate the schedule or vitiate the effect of .the discharge. Nor would the bankrupt be deprived of the benefit of the order because the debt was described as an ‘account for merchandise’ rather than as a judgment into which the liability for the flour had been merged. See Matteson v. Dewar, 146 Ill. App. 523, where it was held not to be a fatal defect for the Bankrupc to schedule the debt as an “account” even though a note had been given in settlement.

The prima.facie effect of the order, to relieve the bankrupt from liability on all debts prior, to 1905, was not defeated because there may have been a difference between the account and the judgment. The burden of showing that there was such difference was upon the creditor and in this case there was not only no evidence tending to sustain such a contention, but the two claims seem to have been treated as identical in the trial court, for there the objection to the admission of the Schedule was based on the contention that it referred to an account “which had been reduced to a judgment in 1897.”

4. Another question — and the one on which the Appellate Court based its decision, — was whether the Schedule, listing the creditor as C. Ferger, Indianapolis — using an initial and omitting the street number of his residence— met the requirements of § 7 (8), making it “the duty of bankrupts to prepare, make oath to, and file ... a list of his creditors showing their residences if known, if unknown that fact to be stated.”

While this only involves a determination of what is a sufficient designation of a person’s name and residence, yet it is one of those apparently simple questions which has been the occasion of an immense amount of controversy. The difficulty grows out of the impossibility of applying a general and uniform rule where there are so many varying methods by which men’s names and residences are designated. Some men have a well-known and constantly used Christian name; others are addressed by an abbreviation for the Christian name; others by initials for the Christian name; others are known by nickname. Some men use one name in business and another among their acquaintances. Some men, while personally addressed by'their full Christian name, use initials in signing letters, notes, checks and other papers.

The Bankruptcy Act fails to prescribe which form of designation shall be used in listing creditors in the schedule. The statute must be construed in the light of the fact that it not only applies to transactions growing out of dealings between those personally acquainted, but, in large degree, relates to matters growing out of transactions between persons living in distant States and who may never have met. In many instances the only knowledge the debtor has as to the name of his creditor is derived from signatures, letterheads, drafts and like instruments — in which the name of the creditor may be designated by initials, or by abbreviation, or by a full Christian name. To say that the use of an initial in listing a creditor was improper when the creditor himself may have used an initial in signing letters addressed to the Bankrupt — or may himself have constantly received letters addressed to him in that manner — would not only ignore a common business practice, but would, in many instances, .work a great hardship. This has been recognized in other branches of the law. For, while, of course, in all legal proceedings it is safest to designate persons by their Christian names, — and in some States this is even required by statute, — yet it has likewise been held that the use of the initial is an irregularity and not a fatal defect. Queen v. Dale, 17 Ad. & Ell. 64; State v. Webster, 30 Arkansas, 166; Perkins v. McDowell, 3 Wyoming, 203; Minor v. State, 63 Georgia, 320; State v. Johnson, 93 Missouri, 73.

' There have,.no doubt, been multitudes of instances in which initials have been used in listing creditors in Bankrupt schedules, but the only decision found which deals with this question is Gatliff v. Mackey, 104 S. W. Rep. 379 (Kentucky). It holds that the listing of the creditor by an initial, instead of the full Christian name, is not sufficient to deprive the debtor of the benefit of the order discharging provable debts. See also Matteson v. Dewar, 146 Ill. App. 523.

5. Of a like nature, and to be governed by the same principle, is the contention that, even if C. Ferger is a sufficient listing of the name, the schedule was fatally defective because it failed to give the street and number of his residence in Indianapolis. This objection is more difficult of solution than any of the others presented by this record. But, like them, it must be considered in the light of the fact that the statute was- intended for business men and should receive not only a practical but a uniform construction. Its provisions are applicable to creditors who live in the country, in villages, in towns and cities. The statute is general in its terms and the courts cannot add to its requirements.

All of the cases dealing with the subject recognize the necessity of having claims properly listed, and point out that failure to comply with the statutory requirement to file a list of his creditors, showing their residence if known, will render the discharge inoperative against any who did not receive actual notice of the bankruptcy proceeding in time to have their claims allowed. Columbia Bank v. Birkett, 195 U. S. 345; Troy v. Rudnick, 198 Massachusetts, 567. The authorities, however, differ as to whether under § 17 (3) the. burden is on the plaintiff to show that he had no notice, or on the .bankrupt to show that the creditor had notice in time to have proved his claim and had it . allowed. Steele v. Thalheimer, 74 Arkansas, 518; Van Norman v. Young, 228 Illinois, 430; Alling v. Straka, 118 Ill. App. 184 (2); Hallagan v. Dowell, 139 N. W. Rep. 883 (Iowa); Parker v. Murphy, 215 Massachusetts, 72; Wineman v. Fisher, 135 Michigan, 608; Laffoon v. Kerner, 138 N. Car. 285; Fields v. Rust, 36 Tex. Civ. App. 351; Bailey v. Gleason, 76 Vermont, 117, 118; Custard v. Wigderson, 130 Wisconsin, 414. In view of the scope of his testimony that he did- not know of the Bankruptcy it is not necessary in this case to discuss that mooted point, unless it must be held that, because of the failure to set out the number of Ferger’s house in Indianapolis, his claim was not duly scheduled.

The question as to the necessity of giving the street address has sometimes arisen in suits against endorsers, who claimed that they were relieved from liability because the notice of non-payment and protest was addressed to them at the city where they lived, but without adding the street-and number of his residence. .It seems generally to have been held that mailing a notice thus addressed is prima facie sufficient. True v. Collins, 3 Allen, 438; Clark v. Sharp, 3 M. & W. 166; Mann v. Moors, Ryan & M. 250; Peoples Bank v. Scalzo, 127 Missouri, 188; Morton v. Westcott, 8 Cush. 425; Bartlett v. Robinson, 39 N. Y. 187. See also Bank of Columbia v. Lawrence, 1 Pet. 578, 581; Bank of United States v. Carneal, 2 Pet. 550, 551. There are only a few instances, under the Bankrupt Act, in which the courts have had occasion to deal with the subject, or to construe § 7 (8), — requiring claims to be duly listed — , in connection with § 17, 'which provides that a discharge shall release the debtor from all provable debts “except such as. . . . (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. . . .” It hasbeen held that a claim is not duly scheduled if the name of the creditor is improperly spelled (Custard v. Wigderson, 130 Wisconsin, 414); or if the street number is given but the name of the city of his residence is omitted (Troy v. Rudnick, 198 Massachusetts, 563); or if the creditor is listed as residing in one city when he actually lives in another (Marshall v. English Co., 127 Georgia, 376): or if the creditor’s name is given but the schedule falsely recites “Residence unknown” (Birkett v. Columbia Bank, 195 U. S. 345; Miller v. Guasti, 226 U. S. 170; Parker v. Murphy, 215 Massachusetts, 72). These decisions, however, were based on extrinsic proof and on a finding that, as a matter of fact, the name was misspelled, or the creditor’s residence was improperly listed, or that the bankrupt knew the creditor’s áddress and falsely stated that the residence was “Unknown.” None of them holds that, as a matter of law, the discharge was rendered inoperative merely because the street number was not given in the schedule.

6. Indeed, it is not claimed that the Act requires that this street address should be stated in every instance where the creditor lives in a city having a Postal Delivery System. Evans v. Fleuring, 62 Kansas, 813. But, it is argued, that this should be done where he resides in one of the very large cities o‘f the country. And we find that in some Districts the Referee examines the schedule and, in his discretion, requires it to be amended so as to give the street number (In re Brumelkamp, 95 Fed. Rep. 814; In re Dvorak, 107 Fed. Rep. 76). We also find that the Bankruptcy Rules of force in the Southern District of New York provide (italics ours) that the schedules “as respects creditors in the city of New York, should state the street and number of their residence, or place of business so far as known.” Widenfeld v. Tillinghast, 54 Misc. N. Y. 93. See also Cagliostro v. Indelle, 17 A. B. R. 685; McKee v. Preble, 138 N. Y. Supp. 915.

But without considering the effect of such Rule, it is sufficient to say that, in the present case, theré was nothing to show that any similar regulation had been made in the Indiana District, nor is there proof as to what was Ferger’s street address; or that Kreitlein knew such address at the time he made the schedule; or that the notice may not. have been delivered during Ferger’s absence from the city and not received by him on his return. Nor is there any evidence to show that Ferger did not constantly and promptly receive letters addressed to him at Indianapolis without the street number being given.

7. It is said that Kreitlein might have examined the Directory, but the suggestion presupposes that at the time of making the schedule the bankrupt had access .’to a directory and overlooks the fact that even if the address given therein was correct when made, the creditor may have moved before the book was issued so that if notice was mailed to an incorrect street address the creditor might contend that such specific address was not required by statute and that the burden of the mistake was east on the bankrupt. We are here dealing with a general rule applicable to cases where the parties reside in different parts of the country as well as to instances where they lived in the same city. The rule is the same as to both. There certainly is no presumption that bankrupts have access to directories containing the street addresses of their creditors throughout the land; and, if the fact was essential, the question as to whether the bankrupt had access to a directory, or whether it was correct, were matters of proof, none of which was made in the present case.

8. Both as to the use of initials and omission of street address the Act must be given a general construction and in the light of the fact that letters ^directed to persons by their initials are constantly, properly and promptly delivered in the greatest cities of the country even when the street number is not given. When it is considered that the schedule must not only include claims of recent origin but debts which have accrued many years before and where the creditor may have changed his residence, it becomes evident that to lay down the general rule that the schedule must give the name of the creditor and the city and street number of the residence of those living in the largest cities would, in a multitude of cases, destroy the beneficent effect of the Bankruptcy Act.

■ These schedules are often hurriedly prepared, long after the date of the transaction out of which the debt grew, and when books and papers, which might otherwise have furnished a fuller and more complete address, have been lost or destroyed. Bearing in mind the general purpose of the statute to relieve honest bankrupts; considering that the Act does not expressly require the street address to be stated or the residence to be given unless known; and giving proper legal effect to the Order of Discharge, we hold that a schedule listing the creditor’s residence as Indianapolis is, at least, prima facie sufficient. In view of this conclusion the judgment of. the Appellate Court of Indiana is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed.